Lillian Philippe was seventy-one and was supposed to drive her sister-in-law to a bus on the morning of April 10, 1997; the two women were going on a religious retreat in Chatawa, Mississippi. When she did not come, her brother-in-law, a doctor, went to her house in Gonzales and found her car in the driveway, the door unlocked and the alarm switched off. A Gonzales officer found her at the foot of her bed. On the roof someone had pulled out an attic vent, and a wrought iron chair stood on top of the air-conditioning unit by the front porch.
Her death was one of a run of home invasions in the river parishes between Baton Rouge and New Orleans. Victor Rossi was killed in Ascension Parish in October 1996, Sam and Louella Arcuri in St. John the Baptist Parish the following May, Joan Brock in LaPlace days later and Barbara Bourgeois in St. James Parish after that, and in July an older couple in Ascension Parish was beaten and shot and survived. A composite drawn from that couple's description, a casino security guard who thought it looked like a mechanic named Daniel Blank, and subpoenaed casino records showing he had run $269,000 through three casinos brought a task force to his workplace in Onalaska, Texas. In a courthouse annex there, in November 1997, after a polygraph given by an FBI agent, Blank confessed on tape to all of it. Rossi had once employed him, and so had Joan Brock's husband.
The file holds nine rulings. The center of it is the Supreme Court of Louisiana's opinion of April 11, 2007, on his direct appeal from the death sentence for Lillian Philippe, about nineteen thousand words: the court took seventy-two assignments of error and rejected all of them, with two justices dissenting. Before it comes the 2001 ruling of the state's Fifth Circuit Court of Appeal on the Bourgeois plea, which sets out his account of the interrogation in detail, the hours without food or a cigarette, the polygraph he says was falsified, the detective who told him his dead mother would want him to confess, and the trial court's reasons for admitting the videotaped statements anyway. After it come the 2011 appeal on the Brock case, the orders of 2015, the stay granted on February 17, 2016, a month before his execution date, and the May 2016 decision refusing post-conviction relief.
Blank was still on death row at Angola in 2025. He now says he is innocent. His lawyers point out that no physical evidence tied him to any of the killings, and court filings reported in 2024 said that male DNA on the bat used to kill Victor Rossi, under Sam Arcuri's fingernails and on cigarette butts from the couple's house did not come from him; a federal judge had ordered the state crime lab to compare twenty-nine fingerprints from the scenes. None of that testing appears in these opinions, which end in 2016.
Every conviction here rests on the November 1997 statements, and almost every opinion in the file is, at bottom, about whether they could be used. The Louisiana courts said yes each time, and the 2016 per curiam treats his later claim of actual innocence as an attempt to re-argue the reliability of the confession. That is a finding about the law of confessions, and it is not the same thing as an answer to the DNA and fingerprint questions, which were raised after these rulings and are still being argued.
The record does not agree with itself in two places. The 2007 opinion says a jury convicted Blank of Joan Brock's murder and sentenced him to death, and that the case was then pending on appeal; the 2011 opinion is an appeal from a guilty plea to the same murder, and nothing in the file explains how the one became the other. Later reports say the Brock death sentence was replaced with life. The 2007 opinion's own list of the crimes dates Barbara Bourgeois's death May 18, 1997, while the facts Blank stipulated to at his 2001 plea place it on the night of March 18. We have left both as the courts wrote them. The 2007 opinion also records that Justice Kimball dissented with reasons and the Chief Justice joined her, but the dissent itself is not in the capture.
The couple who survived the July 1997 attack appear here as L.M. and J.M., and where the court calls them by their surname we have printed "the M. couple" or "Mr. and Mrs. M." Blank's girlfriend and her mother, the security guard who recognized the sketch and eight people questioned for the jury are also reduced to initials. Victims, officers, lawyers and judges are named as the courts named them.
The text came from scans of the Southern Reporter, and the scanner left marks we have removed and marks we could not. The small page numbers the reporter prints inside a paragraph, which the scan reads as a bar and a digit, have been taken out. The misread words have been left alone, because they are the court's words and we will not guess at them: the 2011 opinion opens on "12Pefendant/appelIant", and the 2016 ruling on "■ iDenied". The court opinions themselves are public domain.
STATE of Louisiana v. Daniel Joseph BLANK.
No. 99-KK-2264.
Supreme Court of Louisiana.
Aug. 5, 1999.
In re Blank, Daniel Joseph; — Defendants); applying for supervisory and/or remedial writs; Parish of Ascension 23rd Judicial Appeal, First Circuit, No.99 KW 1537.
Denied.
CALOGERO, C.J. not on panel.
STATE of Louisiana v. Daniel BLANK.
No. 01-KA-564.
Court of Appeal of Louisiana, Fifth Circuit.
Nov. 27, 2001.
Anthony G. Falterman, District Attorney, 23rd Judicial District, Donald D. Can-dell, Assistant District Attorney, Gonzales, for appellee.
Jane L. Beebe, Gretna, for appellant.
Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY and MARION F. EDWARDS.
[OPINION BY [ .MARION F. EDWARDS, J. type=majority]
[ .MARION F. EDWARDS, J.
Defendant/Appellant, Daniel Blank, appeals from the court’s ruling which held that his confessions, related to the murder of Barbara Bourgeois, were admissible at trial. Blank alleges that the confessions, taken on separate occasions, were not knowingly, intelligently, or voluntarily made. For the following reasons, we affirm.
On February 10, 1998, in the Twenty-Ninth Judicial District Court for the Parish of St. James, Daniel Blank was charged by indictment with one count of first degree murder, a violation of LSA R.S. 14:30, for the murder of Barbara Bourgeois. On March 17, 1998, Blank was arraigned and entered a plea of “not guilty.” Blank filed more than 30 pre-trial motions, including a motion to suppress confessions from November 13 and 14, 1997, and a confession from April 24, 2000 at Angola State Penitentiary. A hearing on the motion to suppress the confessions from November 13 and 14, 1997 was held on August 9, 2000, and the trial court 1,.ruled that these confessions, from the November dates in question, were admissible.
On December 5, 2000, the State amended the indictment to charge one count of second degree murder, in violation of LSA-R.S. 14:30.1. Blank was re-arraigned on the charge of second degree murder and pled not guilty. After this arraignment, a hearing on the motion to suppress the confession of April 24, 2000 was held. Following that motion, the trial court ruled the confession from the April date was admissible. The trial court then rendered ■written reasons for judgment, denying Blank’s motion to suppress.
On February 5, 2001, jury selection began in Blank’s trial and on February 6, 2001, the jury was impaneled. After the trial had begun, however, Blank pled guilty to second degree murder of Barbara Bourgeois. Blank was advised of his constitutional rights, and entered his plea pursuant to State v. Crosby, reserving his right to appeal the ruling on the motion to suppress the statements. The trial court sentenced Blank to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence.
The following facts were recited by the court and stipulated to by Blank at the February 6, 2001 plea and sentencing:
On the night of March 18, 1997, or in the early morning of March 19, 1997, in the Parish of St. James, Daniel Blank committed second degree murder of Barbara Bourgeois. Daniel Blank walked to the residence of Barbara Bourgeois for the purpose of committing a theft therein. He disabled the telephone wires at her residence. Daniel Blank then unlawfully entered the residence of Barbara Bourgeois through the utility room. Once inside the residence, Daniel Blank began to look for money. Barbara Bourgeois awoke and confronted Daniel Blank who armed himself with a vacuum cleaner and hit her repeatedly in the head and body causing large hemato-mas, mass blunt trauma to the face, fractured nasal bones, injuries to her trunk, chest, and both shoulders causing a fractured sternum and hemorrhage which caused her death.
LAW AND ANALYSIS
Blank alleges one assignment of error on appeal, arguing that the trial court erred in failing to suppress the appellant’s confessions of November 13 and 14, 1997 and April 24, 2000.
On December 9, 10, and 29, 1998, the Twenty-Third Judicial District Court conducted hearings on the motion to suppress statements made by Blank on November 13 and 14, 1997 in case number 10677. On July 22, 23, and 26, 1999, the Fortieth Judicial District Court also conducted hearings on Blank’s motion to suppress statements in case number 97-639. In this case, the 29th Judicial District Court heard Blank’s motion to suppress the same statements on August 9, 2000. Since the evidence and testimony would be identical, both Blank and the State agreed in this case to submit into evidence the transcript, arguments and original videotapes of the suppression hearings from the Twenty-Third and Fortieth Judicial District Court. Also in this case, the hearing for the motion to suppress the statements that occurred at Angola, was held on December 5, 2000. Several witnesses were called at that hearing by the State.
November 13 and 14, 1997 Confession
Blank argues that the trial court erred in admitting the confessions from November 13 and 14, 1997, because they were not knowingly, intelligently, and voluntarily made. Blank further claims that he was deprived of food, cigarettes and [Rsleep during the interrogation, and contends that only after he confessed to some involvement in the homicides after six to seven hours of interrogation, was he allowed to smoke in the interrogation room. Blank further argues that he collapsed from fatigue and began weeping when the detective told him that his deceased mother would want him to confess. Blank also asserts that the detectives administered a polygraph test and induced his confession when they falsified the results. Finally, Blank contends that the collective nature of the deprivation of food, sleep, cigarettes, the falsified results of the polygraph test, and the mention of his deceased mother, all amounted to coercion in inducing him to confess.
In its reasons for judgment, the trial court ruled that the November 13 and 14, 1997 confessions were admissible, stating that the videotaped confession demonstrated that Blank waived his rights before answering any questions. The trial court noted:
The defendant did not put on any testimony to indicate that he was deprived of food, nor is there evidence that he asked for anything to eat. The videotaped confession clearly shows that he was given something to drink when he asked for it. There is no evidence to show that law enforcement withheld food for the purpose of obtaining a confession. The defendant also mentions that he was not allowed to smoke. This simply does not rise to the level of making the confession involuntary. Also, the defendant asserts that because he was tired the confession is invalid. However, he was fully advised of his rights and could have stopped the questioning at any time. He chose not to do so. No evidence of police brutality, beatings or physical mistreatment was presented and no accusations were made. The physical tactics frequently used by police and that necessitated the ruling in Miranda are not evidenced by the videotape or any testimony.
Before an inculpatory statement, made during a custodial interrogation, may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights and that the statement was made Ufreely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement or promises. A determination of voluntariness is made on a case-by-case basis, depending on the facts and circumstance of each situation. The admissibility of a confession or statement is a determination for the trial judge and his conclusions on the credibility and weight of the testimony relating to the voluntary nature of the confession or statement are entitled to great weight and will not be overturned unless unsupported by the evidence. Also, in State v. Serrato, and in State v. Shepherd, the courts have held that the trial judge must consider the totality of the circumstances in deciding whether the confession is admissible.
The evidence presented at the suppression hearing on December 9, 1998 before the Twenty-Third Judicial District Court established the following facts: Blank was living Onalaska, Texas, where he set up an automotive repair shop at the time of the interrogation. On November 11, 1997, a task force of detectives from Ascension and St. John the Baptist Parishes went to Onalaska to speak to Blank. On November 13, 1997, at around 12:30 p.m., Detectives Mike Nettles, a Texas police officer, and Mike Toney of the Ascension Parish Sheriffs Office, approached Blank at his repair shop and asked him if he would speak with them at the Polk County Courthouse Annex. Detective To-ney testified that Blank was not arrested, nor was he handcuffed. He stated that Blank voluntarily went with the detectives. Blank was brought to an interview room that was set up with a video camera in plain 17view.
Immediately upon entering the interview room, Detective Todd Hymel of the St. John Sheriffs Office informed Blank that he was not under arrest. Blank responded that “he was not even worried about that.” Detective Hymel next advised Blank of his Miranda rights, which he stated he understood. Then Detective Hymel asked Blank, “Are you willing to answer questions at this time without a lawyer present?” Blank responded in the affirmative saying, “Yeah I’ll answer them ... I’ll answer anything you ask, I mean I ain’t got nothing to hide.”
Considering the foregoing exchanges and the record in this case, we find that the State established that Blank was advised of his Miranda rights before questions began, and that he understood those rights. Once the State proves that the Miranda warnings have been given, the statements must then have been made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement or promises.
Food
The record indicates that Blank did not ask for any food during the entire interview on November 13, 1997; he also did not indicate that he was hungry. In the transcript of the hearing on the motion to suppress before the Twenty-Third Judicial District Court, Detective Hymel testified that during the November 13 interview, Blank did not ask for any food, and had he requested food, he would have received it.
The detectives offered Blank something to drink on several occasions. Detective Hymel testified that he reviewed the taped interview several times and stated that Blank was provided five drinks—four Cokes and one cup of water. The [^twelve and one-half hour video of the interview is the best evidence to determine whether the confession was induced from lack of food. Upon review of the tapes, there appears no indication that Blank’s confession resulted from lack of food. There was no express statement or mention of food by either the detectives or Blank. The detectives did not promise to give Blank food if he confessed. Further, the detectives did not eat in front of him, and Detective Toney stated that neither he nor Detective Hymel ate anything during the time frame of the interview. In light of the fact that the detectives provided Blank with drinks, bathroom breaks, and adjusted the temperature in the interview room, there is nothing in the record to suggest that Blank would have been denied food upon request. In light of the totality of the circumstances, there appears to be no coercion by the detectives to induce a confession from lack of food.
Cigarettes
Blank tried to smoke a cigarette in the interview room; however, Detective Hymel informed him that he could not smoke in the building. Detective Hymel testified that at approximately 3:45 p.m., which was two hours and forty-five minutes into the interview, Blank lit up a cigarette for fifteen seconds while he was not in the room. When Detective Hymel returned to the interview room, he informed Blank that he could not smoke in the building and directed him to put out the cigarette, explaining that there was a “no smoking” sign ppsted on the door. Detective Hymel also stated that shortly thereafter, at around 4:10 p.m., right before the polygraph test was to be administered, Blank had a 12-minute break where he went to the bathroom. Detective Hy-mel testified that Blank smoked a cigarette while in the bathroom. Detective Hymel stated that after Blank smoked in the bathroom, the detectives continued to let him smoke. Detective Hymel also stated that Blank [3smoked a cigarette nine times on camera and one time off camera, in the bathroom. Detective Mike Toney, the other officer present in the interview room, also testified that Blank smoked a cigarette prior to confessing.
A review of the record indicates that Blank did smoke prior to admitting some involvement in the crimes. Both Detective Hymel and Toney testified that at first, Blank was not allowed to smoke because of the “no smoking” sign. Based on the record and their testimony, it appears that the initial denial of the Blank’s request to smoke was not because of police coercion but due to the no smoking regulation at the Texas courthouse. However, Detective Hymel stated that once Blank smoked in the bathroom, they allowed him to smoke in the interview room.
Sleep
Within the first three hours of the interview, Blank indicated that he was sleepy when he stated, “Sitting here ain’t doing nothing, getting sleepy.” Before the polygraph test was administered, Blank stated to David Sparks, the polygraph examiner, that he went to bed the previous night between 12:00 a.m. and 1:30 a.m. and woke up the next morning around 8:10 a.m. Blank also stated that he was up late working on a transmission. A review of the tapes also indicates that Blank put his head on the table when the officers were out of the room. The issue is whether Blank was deprived of sleep and, if so, whether this amounted to police misconduct which induced an involuntary confession. Based on the record, it appears that Blank did not request any sleep, only that he was tired from not doing anything and from working late on a transmission. The detectives did not promise Blank that they would allow him to sleep if he confessed. The record indicates that Blank had seven to eight hours of sleep the night before. Also, Blank was up the previous night to 1:00 a.m. which is around the time the interview ended in this case.
flIn light of the foregoing, it appears that the detectives did not deprive Blank of sleep as he claims. Detective Hymel testified that Blank was allowed 14 breaks throughout the 12-hour interrogation. Blank was appraised of his rights, including the right to remain silent and that he could stop the questioning at anytime. In this case, Blank did not invoke the right to remain silent, and at no point did he state that he wanted to stop the interview because he wanted sleep.
Mention of deceased mother
Blank alleges that the detectives coerced him into confessing by the repeated mention of his deceased mother. During the interview, the detectives explained to Blank that his deceased mother would want him to take responsibility and admit to the crimes. At that point, Blank broke down and began to cry. Thereafter, he admitted to his involvement in the crimes. A confession is not rendered inadmissible because officers exhort or adjure an accused to tell the truth, provided the exhortation is not accompanied by an inducement in the nature of a threat or which implies a promise of reward. In this case, the repeated references to Blank’s deceased mother and the exhortation to tell the truth and take responsibility for his actions did not make the confession inadmissible. The detectives did not threaten or promise Blank anything in reference to his mother in obtaining the confession.
Polygraph
In Blank’s appellate brief, he alleges that the detectives administered a polygraph test and falsified the results of the examination to induce his confession. Blank did not specifically brief this issue. He made no page reference in the record to support this claim. Assignments of error that are neither briefed nor argued are luconsidered abandoned. We therefore will not consider this aspect of Blank’s appeal.
The voluntariness of a confession is made on a case-by-case basis, depending on the facts and circumstance of each situation, and the court must look at the totality of the circumstances. Based on the totality of circumstances, we find that Blank’s confession was voluntary and was not induced by the detectives through coercion. In this case, Blank was not deprived of cigarettes prior to admitting some involvement in the crimes. Both Detectives Toney and Hymel testified that Blank smoked a cigarette prior to confessing. Detective Hymel did state that the first time Blank lit a cigarette, he told him to put it out because there was a no smoking policy in the courthouse. Blank further did not request any food or sleep or mention that he was hungry. Blank was allowed to go to the bathroom anytime upon request and was provided several drinks and breaks. At one point during the interview, Blank complained that he was cold. The detectives adjusted the thermostat to accommodate him. There is nothing in the record to suggest that Blank would not have been provided food or sleep upon request. • Further, Blank was read his rights, understood those rights, and could have stopped the interview at anytime.
April 24, 2000 Confession from Angola
Blank argues that the statement to the police specifically regarding the victim, Barbara Bourgeois, given while he was in Angola, was not a voluntary confession because he had previously invoked his right to counsel. Blank further asserts that due to his limited mental capacity he did not voluntarily waive his right to counsel. PIn light of this argument, Blank contends that the State did not prove beyond a reasonable doubt that his confession was voluntary.
The hearing to suppress this confession was held on December 5, 2000. The trial court ruled that the confession was admissible. In its reasons for judgment, the trial court stated:
In Edward, [Edwards] v. Arizona) 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), U.S. Supreme Court held that when an accused has invoked his right under Miranda to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he had been advised of his rights. An accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversation with the police.
The trial court went on to explain that this case presented the same situation as Edwards v. Arizona. Blank initiated conversation with Major Melancon of Angola and expressed a desire to speak to authorities about the murder of Barbara Bourgeois. The trial court found that Blank was read his Miranda rights before he gave his statements and that the waiver of counsel was knowing, intelligent and voluntary.
At the hearing on the motion to suppress held on December 5, 2000, Major Warren Melancon testified. Melancon was employed at Angola State Penitentiary at the time of Blank’s statement. He stated that he received a call from Major Rigato-rio on April 20, 2000 informing him that Daniel Blank wanted to speak to him and make a confession. Major Melancon testified that Blank handed him a three-page written confession. Melancon stated that before Blank handed him the written statement, he advised Blank of his constitutional rights and had him sign a waiver sof rights form. Melancon then asked Blank if he wanted to speak to the deputies from St. James, St. John and Ascension Parishes, to which he responded affirmatively. Melancon then drafted a waiver of right to counsel form that was signed by Blank and two witnesses and then notarized. The document stated:
I am hereby requesting to speak with deputies from the St. John Parish, Ascension Parish and St. James Parish. I wish to speak with them without my attorney present.
No promises or threats have been made to me and no pressure of any kind has been used against me.
Detective Andrew Duhe of the St. James Sheriffs Office also testified at the suppression hearing. Duhe stated that he received a call from Angola that Blank wanted to speak to the investigating officers concerning several homicides. Detective Duhe testified that before he discussed anything with Blank, he advised him of his rights and executed a signed waiver form, On this waiver form, Detective Duhe wrote at the bottom that Blank had an eighth-grade education. Detective Duhe stated that Blank understood the waiver of rights form and signed it freely and voluntarily. On cross-examination, Duhe stated that he asked Blank to name his attorneys, and he did so. Next, Duhe asked Blank if he still wanted to speak to him without his attorneys present. Blank responded affirmatively. Based on this testimony and the exhibits presented at the suppression hearing, the record suggests that the trial court did not err in ruling that Blank initiated the conversation and that there was a valid waiver of counsel.
Blank’s assertion that his diminished mental capacity resulted in an involuntary confession is without merit. The Louisiana Supreme Court has held that diminished mental or intellectual capacity does not of itself vitiate the ability to make a knowing and intelligent waiver of constitutional rights and a free and voluntary uconfession. After reviewing the transcript of the statement on April 24, 2000, there is nothing to indicate that Blank did not knowingly and intelligently waive his right to counsel. Detective Duhe and Major Melancon both testified that Blank knew what he was doing and that Blank understood he was waiving his rights, including his right to counsel. During the interview, Detective Duhe asked Blank to read out loud the signed statement that was prepared by Melancon, stating that he wanted to speak to authorities without his attorneys present. After Blank read the statement out loud, Duhe asked him who his attorneys were, to which he responded — Mr. Cortello and Mr. Van Dyke. Blank agreed to speak to Duhe without his attorneys present.
Based on the foregoing, we cannot say that the trial court erred in admitting the statement given at Angola. Although Blank had an eighth-grade education, he read out loud the signed waiver of his right to counsel. He also agreed to speak without his attorneys, Mr. Cortello and Mr. Van Dyke, present. The assertion by Blank that his diminished mental capacity resulted in an involuntary waiver of counsel is not supported by the record.
This assignment of error is without merit as to all confessions at issue in this case given to police by Blank.
Blank requests, pursuant to LSA-C.Cr.P. art. 920, a review of the record for errors patent. Our review reveals no errors patent present.
In summary, it is the opinion of this Court that the trial court did not commit manifest error in allowing the confessions of Daniel Blank to be admitted into evidence. A review of the record supports a finding that the confessions were 11sknowingly, intelligently, and voluntarily made. For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED.
338 So.2d 584 (La.1976)
The defendant was tried and convicted of first degree murder in the Twenty-Third Judicial District Court for the murder of Lillian Phillipe and also tried and convicted of first degree murder in the Fortieth Judicial Dis-Irict Court for the murder of Joan Brock. In this case, the State and the defendant adopted the testimony and arguments from the hearings on the motion to suppress the confessions of November 13 and 14, 1997, from those cases.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
LSA-R.S. 15:451; State v. Comeaux, 93-2729, p. 47 (La.7/1/97), 699 So.2d 16, 29, cert. denied, 522 U.S. 1150, 118 S.Ct. 1169, 140 L.Ed.2d 179 (1998); State v. Watts, 98-1073 (La.App. 5 Cir. 5/19/99), 735 So.2d 866, 869.
State v. Watts, 735 So.2d at 869.
Id.
424 So.2d 214, 221 (La.1982).
449 So.2d 1120, 1123 (La.App. 5th Cir. 1984).
Comeaux, supra.
State v. Robertson, 97-0177 (La.3/4/98), 712 So.2d 8, 31, cert. denied, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155. State v. Watts, 735 So.2d at 870.
State v. Addison, 00-KA-1730 (La.App. 5 Cir. 5/16/01), 788 So.2d 608; State v. Allen, 451 So.2d 618 (La.App. 5 Cir. 1984); Uniform Rules-Courts of Appeal, Rule 2-12.4.
State v. Watts, 735 So.2d at 869; State v. Serrato, 424 So.2d at 221.
State v. Lavalais, 95-0320 (La.11/25/96), 685 So.2d 1048, 1054; State v. Brooks, 648 So.2d 366, 373 (La.1995).
STATE of Louisiana v. Daniel Joseph BLANK.
No. 2004-KA-0204.
Supreme Court of Louisiana.
April 11, 2007.
Rehearing Denied June 1, 2007.
Capital Appeals Project. Jelpi P. Picou, Jr., G. Benjamin Cohen, Aneel L. Chabla-ni, R. Neal Walker, for Appellant.
Charles C. Foti, Jr., Attorney General, Anthony G. Falterman, District Attorney, Donald D. Candell, Charles S. Long, Assistant District Attorneys, for appellee.
[OPINION BY VICTORY, J. type=majority]
VICTORY, J.
^his is a direct appeal under Louisiana Constitution article V, § 5(D) by the defendant, Daniel Blank. On December 11, 1997, an Ascension Parish grand jury indicted defendant for first-degree murder in violation of La. R.S. 14:30. On August 14, 1998, the state filed its notice of intent to seek the death penalty. On December 16, 1998, the district court granted a defense motion for a change of venue and moved the trial to Terrebonne Parish. After a trial by jury, defendant was found guilty as charged on September 2, 1999. At the conclusion of the penalty phase of the trial, the jury unanimously returned a verdict of death, finding the aggravating circumstances that defendant was engaged in the perpetration or attempted perpetration of an aggravated burglary and that the victim was aged 65 years or older. The trial court sentenced defendant to death in accordance with that recommendation. Defendant now appeals his conviction and sentence, raising 72 assignments of error. After a thorough review of the law and the evidence, we find no merit in any of the assignments of error urged by defendant. Therefore, we affirm his conviction and sentence.
FACTS
On the morning of April 10, 1997, Viola Breaux Philippe was waiting for her sister-in-law, 71-year-old Lillian Philippe, to pick her up at home and drive the two women to catch a bus to a religious retreat in Chatawa, Mississippi. When Lillian had not arrived by 8 a.m. and could not be reached by telephone, Viola called her brother-in-law, Dr. Doyle Philippe, and requested that he check on her.
Dr. Philippe arrived at the victim’s house at approximately 8:30 a.m. and found her vehicle in the driveway, the door to the house unlocked, and the alarm system deactivated. Finding the circumstances suspicious, Dr. Philippe walked into the hallway, and after briefly surveying the immediate area, went back outside and called the authorities. Gonzales police officer Dowell Brenn arrived at the scene, and Dr. Phillipe accompanied him into the house where they found the victim on the floor at the foot of her bed, covered in blood. Brenn also observed a broken trophy near the victim’s head and a bloody “butcher-type” knife next to the bed.
Officer Brenn exited the house, called for back-up, and secured the crime scene. A visual survey of the outside of the residence revealed a hole on the rooftop where an attic vent had been removed. Brenn also saw that a wrought iron chair had been placed atop an air-conditioning unit on the front porch of the residence, presumably to facilitate access to the roof.
Detective Mike Toney was among the officers who participated in the investigation of the Philippe homicide and testified that the victim’s family members and Mends were ruled out as viable suspects. In the meantime, officials from the Sheriffs’ Offices of Ascension, St. John the Baptist, and St. James Parish joined forces with officers from the Gonzales Police Department and agents from the New Orleans Office of the FBI and formed a task force to investigate the murder as among a series of homicides that occurred during home invasions in the river parishes that they believed were related. Defendant, Daniel Blank, became implicated as a possible perpetrator of the crimes after an aggravated burglary that occurred at the residence of L.M. and J.M. on July 6, 1997. Following that incident, a composite sketch of the suspect was composed pursuant to the M. couple’s recollection of the suspect and released to the media. Both an anonymous informant and E.C., a security guard at the Square Deal Casino in Sorrento, Louisiana, identified defendant as resembling the individual depicted in the sketch.
On September 25, 1997, Detective Toney proceeded to defendant’s last known address in Sorrento, where he encountered D.R., the mother of defendant’s girlfriend, C.B. D.R. told the officer that defendant did not live there anymore but indicated that she would try to get a message to him. Defendant called the detective at his office approximately 15 minutes later and the officer advised defendant that he wanted to question him concerning some murders that had occurred in Ascension Parish. Toney explained that defendant’s name had come up as a result of an observed change in his spending habits at the casino. Defendant agreed to come and meet with the officer the following weekend and to bring with him proof of his gambling winnings.
Defendant apparently returned to Louisiana from his new home in Texas and left documentation concerning his winnings at the casino with Ms. D.R. Detective Toney collected the documents and conducted a background check on defendant to determine whether his income could support his gaming activity at various area casinos. Subpoenas issued to local gambling establishments revealed that defendant had run a total of $269,000 at three casinos, cashing out a total of $220,216, resulting in a net loss of approximately $49,000. Managers at the Treasure Chest Casino indicated that based on defendant’s wagering history, he had a player profile of a corporate executive with annual earnings of over $200,000. In contrast, Louisiana Department of Labor records revealed that defendant had no reported earnings for 1997 and annual earnings of only $13,767 in 1996 and $5,410 in 1995. Department of Motor Vehicles records demonstrated that defendant and C.B. had purchased a pick-up truck, a station wagon, a motorcycle and a utility trailer in 1997. The task force also learned that on July 15, 1997, defendant had purchased a mobile home for $22,000 in Onalaska, Texas. Defendant became the prime suspect in the multiple murders as a result of his unusual spending habits after the commission of the crimes, as well as his past association with three of the victims.
In a subsequent telephone conversation with Detective Toney, defendant agreed to travel to Louisiana to meet with the officer on November 10, 1997, but ultimately did not show up as promised. Consequently, Toney, accompanied by other members of the task force, including Officer Brenn, Lieutenant Benny DeLaune, Detective Todd Hymel, and FBI Agent David Sparks, proceeded to Onalaska to interview him, armed with search warrants for his home and business.
The task force encountered defendant on November 13, 1997, when they arrived at his place of business, Daniel’s Automotive, and he readily agreed to accompany the officers to the Onalaska Courthouse Annex. For the next 12 hours, Detective Toney and other members of the task force questioned defendant, first about his spending habits, and later about his participation in the various murders.
DB:.... Then I went back in and turned the light back on and started looking some more. And I didn’t find anything so I gave up on it and — and when I come out I had turned the light off and when I come out that's when I saw something swinging at me.
MT: You saw something swinging at you.
DB: Well, I saw a shadow of something, the light was off, the only light on was I think the bathroom light. And uh when I saw something coming at me with the shadow of the bathroom light and — and uh just put my arm up and then I grabbed it and uh pushed her. And uh.
MT: When you say you saw this something swinging at you was it a person?
DB: Yeah, it was the woman swinging something at me I don't know if it was [a] lamp uh, I didn’t see it I just grabbed it. And it could have been a lamp, it could have been a trophy, it kind of felt more like a trophy I — I don't know it could have been one of them little skinny lamps, I don’t know. And uh, well that’s when I pushed her — pushed her and uh and then she comes at me, with uh I don’t know if it was a knife or one of them letter openers or something I don’t remember what it was I didn’t see it.
MT: She had it in her hand?
DB: Yeah that’s when I hit her with the thing I had in my hand. And then I grabbed it and uh I cut her with the knife, I don’t remember where I cut her at or how I did it. It just happened so fast I just — I just freaked out and then I— then I left after that.
MT: Alright. So you're saying while you was in the closet you heard some noise and you turned the light out in the closet.
DB: Right.
MT: And then you waited a little while and you turned the light back on.
DB: No, I — I turned the light off when I heard a noise and then I kind of opened the closet door and pe[e]ked out. And I didn't see anything or didn't hear anything. And I waited a couple of seconds and then I closed the door back and turned the light back on. And uh then when I was ready to get out after I had looked around and uh, they had all kind of stuff in there I kind of emptied the drawers out and stuff like that and didn’t find nothing. I just decided to leave.
MT: Okay.
DB: And then when I come out that's when, when I turned the light off and opened the door and come out that’s when she was standing there and uh she had something in her hand and swung it at me.
MT: And you took it away from her?
DB: I put, you know, my hand up like that and it hit me on the arm. And then I grabbed it, pushed her on back onto the bed. And then she grabbed something off of the table or something, coffee table and it could have been a knife or could have been one of them letter openers, I don't remember.
MT: Okay so when she went to grab this you had this trophy.
DB: She come up.
MT: Or lamp in your hand.
DB: Yeah, she come up and all I seen was a, like a shadow, because I there wasn’t no light where she was the light was where I was shining from the bathroom. And the bathroom door wasn’t all the way open it was kind of cracked. And uh well then she come back at me with the knife and uh, I tried to grab it but I couldn't see her — her arm to grab it. And I just kind of ducked to the side and I hit her with the thing that I had in my hand.
MT: What part of the — her body did you hit her?
DB: I think I hit her in the head, I ain't sure.
MT: Okay.
DB: I think that’s where I hit her.
MT: And what did she do?
DB: And after that I — I pushed her and uh then I grabbed her hand with the knife and I know I cut her, I don’t know where. But uh.
MT: Was she standing up when you cut her? Or.
DB: No, she was laying on the, I think she had when I pushed her she was laying across the bed or at the edge of the bed. Uh, and after I — after I did that then I— then I left.
MT: But you hit her with the knife, too then.
DB: Yeah.
MT: Okay and then you left.
DB: I uh — I—I grabbed her arm or hand or something and went back with it and then I — I took the knife and uh I ain’t positive, but I think I hit her twice with it. I ain’t sure I don’t remember it happened so fast. Uh, I was just scared and I — I just took out and left.
MT: You took — you took out and left or took her out?
DB: No, I took off. I got out of there.
After three hours of initial questioning by Detectives Hymel and Toney, during which defendant denied any involvement in the murders, defendant agreed to submit to a polygraph examination. At that time, FBI Agent Sparks proceeded to interview defendant for approximately two-and-one-half hours and conducted the polygraph examination, which related only to the murder of Joan Brock on May 14, 1997, in St. John the Baptist Parish. During this interview, defendant continued to deny any involvement in the crimes, although the polygraph suggested that he was being untruthful in his responses to questions about the murder of Mrs. Brock. After Sparks concluded his interview and defendant had taken a bathroom break, Detective Hymel entered the room and, in a long and solemn speech frequently referencing defendant’s recently deceased mother, calmly appealed to defendant to confess. In response, defendant became somewhat emotional and slowly began to confess, first fito the Brock homicide, and then to each of the other multiple homicides, including the murder of Lillian Philippe. These confessions were very detailed. A video tape fiof this interrogation and confession, along with a transcript, was introduced into evidence and played for the jury. However, the two-and-one-half hour portion of the interview where defendant was questioned by David Sparks and given a polygraph test was edited out and not seen or considered by the jury. The state could not produce any forensic evidence placing him at the various crime scenes, so it relied almost entirely on the confession to prove defendant’s guilt at trial. Throughout this confession, the jury heard evidence that large amounts of cash were stolen from most of these residences, that defendant was gambling large amounts of cash at area casinos in vast excess of his actual income, that defendant knew most of the victims, and appeared to have motives in addition to robbery for some of them, and that he knew the specific details of all the crimes.
DISCUSSION OF ASSIGNMENTS OF ERROR
I. Motion to suppress.
Defendant filed a motion to suppress in which he claimed that his videotaped confession should be excluded from evidence because it had been obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and had been illegally coerced by the interrogating officers. After entertaining considerable evidence on the issue, the court denied the motion in a lengthy ruling dated April 12, 1999.
In his first argument on appeal, defendant claims that the court erred when it denied his motion and admitted the majority of the inculpatory statement in which she admitted to committing the instant offense and several other aggravated burglaries and homicides. Specifically, defendant maintains that the “harsh circumstances of the lengthy interrogation, the unique susceptibilities of the defendant, and the statement’s lack of consistency with the physical evidence secured during the investigation of the case” demonstrate that the state had obtained the confessions through coercion and duress. He also claims that deficiencies in the state’s Miranda warnings rendered the statement inadmissible.
A. The trial court correctly concluded defendant was not in custody when he voluntarily agreed to accompany the officers to the station.
First, defendant claims that the court erroneously concluded that he voluntarily accompanied officers to the substation when the circumstances of the interrogation demonstrated that he was in custody for the duration of the interview.
Miranda’s prophylactic safeguards apply only to custodial interrogation, and custody is decided by two distinct inquiries: an objective assessment of the circumstances surrounding the interrogation to determine whether there is a formal arrest or restraint on freedom of the degree associated with formal arrest; and, second, an evaluation of how a reasonable person in the position of the interviewee would gauge the breadth of his freedom of action. Stansbury v. California, 511 U.S. 318, 321, 114 S.Ct. 1526, 1528-1530, 128 L.Ed.2d 293 (1994), (citing California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam); Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977) (per curiam)).
In this case, a review of the suppression transcript and trial testimony reveals that Detective Toney and Captain Mike Nettles, the two officers who went to defendant’s automotive store, both testified that he agreed to accompany them to the police station to answer questions and that he was free to leave before confessing to the crimes. Defendant was not administered Miranda warnings at his place of ^business nor was he handcuffed while he traveled to the station in the front passenger seat of the police vehicle. In addition, at the outset of the interrogation, Detective Todd Hymel advised defendant, “[Yjou’re not being placed under arrest, I don’t [want] you to miss understand [sic].” Defendant responded, “... well I ain’t even worried about that.”
This exchange demonstrates that defendant voluntarily accompanied the officers to the station, and he thus fails to show that he had been arrested on less than probable cause and consequently that subsequent statements should have been suppressed as fruits of an illegal detention. See Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963).
In any event, immediately after informing defendant that he was not under arrest, the officers nonetheless administered the first of several sets of Miranda warnings and then began to question defendant about large sums of money he had spent in the last several months. Since defendant did not make any inculpatory admissions until after he had waived his Miranda rights, he shows no basis for suppression of his statement based on the state’s failure to advise him of those rights in a timely manner.
B. The totality of the circumstances demonstrate the confession was voluntary.
Next, defendant claims that the statement should have been excluded in its entirety because the state failed to establish that it had been given freely and voluntarily. In making the argument, defendant points to numerous factors which he maintains reveal the coercive nature of the interrogation.
Before the state may introduce a confession into evidence, it must demonstrate that the statement was free and voluntary and not the product of fear, duress, intimidation, menace, threats, inducements or promises. La. R.S. 15:451; La. C.Cr.P. art. 703(D); State v. Simmons, 443 So.2d 512, 515 (La.1983). If a statement is a product of custodial interrogation, the state additionally must show that the person was advised before questioning of his right to remain silent; that any statement henmakes may be used against him; and, that he has a right to counsel, either retained or appointed. Miranda v. Arizona, supra. When claims of police misconduct are raised, the state must specifically rebut the allegations. State v. Vessell, 450 So.2d 938, 942-943 (La.1984). A trial court’s finding as to the free and voluntary nature of a statement carries great weight and will not be disturbed unless not supported by the evidence. State v. Benoit, 440 So.2d 129, 131 (La.1983); State v. English, 582 So.2d 1358, 1364 (La.App. 2nd Cir.1991), writ denied, 584 So.2d 1172 (La.1991). Credibility determinations lie within the sound discretion of the trial court and its rulings will not be disturbed unless clearly contrary to the evidence. Vessell, supra at 943. When deciding whether a statement is knowing and voluntary, a court considers the totality of circumstances under which it is made, and any inducement is merely one factor in the analysis. State v. Lavalais, 95-0320, p. 6 (La.11/25/96), 685 So.2d 1048, 1053; State v. Lewis, 539 So.2d 1199, 1205 (La.1989); State v. Thomas, 461 So.2d 1253 (La.App. 1st Cir.1984), writ denied, 464 So.2d 1375 (La.1985).
1. The Miranda colloquy reflected a knowing waiver of rights.
Defendant maintains that the record did not establish that he made a knowing waiver of his Miranda rights. Specifically, he claims that because officers did not immediately tell him that they were investigating him for the series of murders, but rather initially indicated that they were merely interested in his spending habits, he could not make an informed decision about whether to invoke his Miranda rights. Indeed, a review of the lengthy interrogation reveals that for the first hour-and-one-half of the interview by Detective Hymel’s own calculation, the officers focused primarily on defendant’s spending habits and purported winnings playing video poker. However, as discussed above, defendant was told at the outset of the Ininterview that he was not under arrest and the circumstances of the interview demonstrated that his presence at the sheriffs substation was entirely voluntary. Given that defendant was not in custody at the time, he was not even entitled to Miranda warnings.
In addition, several weeks before the interrogation, Detective Toney spoke to defendant on the telephone and informed him that he wanted to discuss the unsolved homicides in Ascension Parish. Further, Toney told him before the interview that they were going to discuss the same things they talked about over the telephone.
l12In any event, a transcript of the interview reveals that officers did administer Miranda warnings before the interview commenced; that defendant indicated that he understood his rights; and that he wished to waive them. There exists no requirement that the state advise a defendant that he is a suspect in a first-degree murder for him to execute a knowing waiver of rights. See, e.g., Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988) {Miranda warnings alone sufficiently apprise the defendant of his Sixth Amendment right to counsel and of the consequences of abandoning that right; no additional or refined warnings needed in this context); but see State v. Cousan, 94-2503, p. 6 (La.11/25/96), 684 So.2d 382, 386-7 (failure of the police to inform a suspect of the subject matter of interrogation “is certainly a relevant factor in reviewing the totality of the circumstances under which defendant made the incriminating remarks.”); ef. La.C.Cr.P. art. 218.1 (when a person has been arrested, the police must advise him “fully of the reason for his arrest or detention ... ”).
Finally, before defendant confessed to any of the murders, he was read his rights a second time before he agreed to take a polygraph and he, himself, stated that the purpose of the examination was that the officers were “trying to find out where I get my money from and talking to me about these people [that] got killed?” Thus, defendant’s claim that he did not make a knowing waiver of his rights because he was misled concerning the nature of the state’s investigation does not warrant relief.
2. The length of the colloquy did not vitiate the voluntariness of the statement.
In the next portion of his claim concerning the court’s ruling denying the motion to suppress, defendant maintains that given the length of the interrogation, he lacked the capacity to give a voluntary statement concerning the crimes.
The record demonstrates that defendant was at the sheriffs substation for approximately 12 hours, interrogated all the while by various police officers. However, arguably at least, because defendant accompanied the officers to the station 1 ^voluntarily and denied involvement in any of the murders for the first six hours, he was in police custody for only approximately half of that time.
In any event, nothing suggests that the duration of the interrogation, without more, rendered it involuntary. In Ashcraft v. Tennessee, 322 U.S. 143, 154, 64 S.Ct. 921, 88 L.Ed. 1192 (1944), the Supreme Court held that 36 hours of virtually continuous interrogation was “inherently coercive.” Aside from Ashcraft, however, the Court has never clarified the point at which the length of an interrogation renders it inherently coercive and thereby involuntary. In most state cases, confessions obtained after quite lengthy interrogations have been held to be voluntary and hence admissible. See e.g., State v. Lapointe, 237 Conn. 694, 678 A.2d 942, 959-60 (1996) (holding that nine-hour interrogation of brain damaged defendant did not render resulting confession involuntary); Burk v. State, 848 P.2d 225, 233 (Wyo.1993) (holding that statements obtained from defendant who was questioned from 8:50 a.m. through the entire day and night were properly admitted).
In addition, while not dispositive on the issue of whether the confession was illegally coerced, the fact that officers administered Miranda warnings nine times during the interrogation weighs in favor of the state on the issue of voluntariness. See ue.g., United States v. Huerta, 239 F.3d 865, 871-72 (7th Cir.2001) (confession voluntary in part because defendant received Miranda warnings three times and executed written waiver); Rook v. Rice, 783 F.2d 401, 404-05 (4th Cir.1986) (confession voluntary despite defendant’s low intelligence, 7th grade education, and statement by police that “the only thing that could help him was to tell the truth” because he was given Miranda warnings twice and indicated that he understood them).
In this case, defendant made several trips to the restroom and drank sodas throughout the interrogation. Although defendant expressed weariness, stated that he was cold, and indicated that he was suffering from back pain intermittently throughout the lengthy interview, he never requested to terminate the interrogation nor did he ever invoke any of his Miranda rights. In these circumstances, defendant does not demonstrate coercion resulting from the protracted duration of the interrogation.
3. Physical and mental distress did not render the statement involuntary.
Next, defendant claims that mental and physical duress during the interrogation caused him to confess to the various offenses involuntarily. In support, he points to several instances in which either he or the officers mentioned that he appeared cold, that his back, head or chest was hurting, or that he appeared tired during the interview. Defendant also claims that the officers coerced his eonfession by making several references to God, religion and his deceased mother. Finally, defendant complains because he was denied the opportunity to smoke a cigarette at one point during the interrogation because the building where the interview occurred did not allow it.
While defendant’s factual allegations are accurate, he does not show that any of the state’s conduct coerced his admissions or rendered the confession involuntary. _[jOur review of the videotapes and the verbatim transcript does not show the officers exercising any type of coercion which would at all indicate that this confession was involuntary. To the contrary, the vast majority of the interview was extremely benign on the part of the officers and Blank was treated very well throughout. In response to defendant’s specific examples of coercive conduct, it is evident from the record that defendant did not request food during the interview, during which, notably, none of the interrogators stopped to eat a meal. Despite intermittent statements expressing fatigue and or physical discomfort, defendant never requested to terminate the interview. Moreover, for the most part, officers accommodated defendant when possible, providing him drinks, allowing him to use the restroom and heating the interrogation room, While at first the officers denied defendant’s request to smoke, after he smoked a cigarette while he was alone in the bathroom, they continued to let him smoke, and he was allowed to smoke before he confessed to any crimes. As to the references to defendant’s deceased mother, appeals to a defendant’s emotions and/or religious beliefs typically do not render an ensuing confession involuntary. See e.g., Johnson v. Trigg, 28 F.3d 639, 644-45 (7th Cir.1994) (confession voluntary 117even though 14-year-old defendant of below average intelligence saw police arrest terminally ill mother before confessing); United States v. Miller, 984 F.2d 1028, 1031-32 (9th Cir.1993) (confession voluntary even though officer, a Mormon bishop, lectured to Mormon defendant that religious tenets required repentance and restitution for wrongdoing). This claim lacks merit.
4. The interrogators’ badgering did not render the statement involuntary.
Defendant also claims that the officers’ relentless exhortations that he tell the truth in conjunction with false suggestions indicating that they possessed forensic evidence of his guilt, illegally coerced the confession. Defendant claims that during the interrogation, officers used the word “truth” no less than 30 times, isincluding several communications in which they urged that he answer their questions truthfully.
Courts have routinely held that a mild exhortation to tell the truth, or a remark that if the defendant cooperates the officer will “do what he can” or “things will go easier,” will not negate the voluntary nature of a confession. State v. Petterway, 403 So.2d 1157, 1159-60 (La.1981); State v. Magee, 93-0643, pp. 3-4 (La.App. 3d Cir.10/5/94), 643 So.2d 497, 499; State v. English, supra at 1364.
In this case, although the officers repeatedly admonished defendant to tell the truth throughout the interrogation, they did not promise him anything in exchange for the confession except for the suggestion that he could clear his conscience. Notably, in State v. Lavalais, supra at 1053, this Court held that an officer’s comments to the defendant that he would likely receive more favorable treatment if he confessed as opposed to failing a polygraph examination did not constitute inducements rendering the subsequent confession involuntary. See also State v. Rochester, 301 S.C. 196, 391 S.E.2d 244, 247 (1990) (advice to defendant from polygraph examiner that it would be “in his best interest to tell the truth” does not render ensuing statement inadmissible). In this situation, defendant fails to show the existence of coercion rendering the statement involuntary.
5. The threat, and ultimate administration of the polygraph examination, did not demonstrate coercion.
Defendant also maintains that officers illegally coerced the confession because not only was he “pressured into submitting to the polygraph exam here, a factor affecting voluntariness, but the results were then used to further intimidate him, thus taking him farther afield from the realm of free and voluntary.”
The record reveals that although defendant expressed some reluctance about taking the polygraph, Agent Sparks advised him that he was not required to submit to the examination and administered Miranda warnings. Defendant ultimately waived his rights and submitted to the polygraph test. This Court has upheld the admissibility of a defendant’s statement in similar circumstances. See State v. Green, 443 So.2d 531, 536 (La.1983) (under totality of circumstances, when defendant was ^advised of his rights before polygraph test, when defendant had not previously asserted his right to counsel, and when defendant’s attorney had agreed to polygraph and set no parameters for its conduct, defendant voluntarily waived his right to counsel although defendant was not readvised of his Miranda rights after polygraphist confronted defendant at conclusion of test with his failure to tell the truth which led to confession). Generally speaking, jurisprudence from other jurisdictions also suggests that confessions are not rendered involuntary because they have been made in anticipation of, during, or following a polygraph examination. See e.g. Wyrick v. Fields, 459 U.S. 42, 48-49, 103 S.Ct. 394, 397, 74 L.Ed.2d 214 (1982) (Per Curiam) (post-polygraph inculpatory statements are admissible if the defendant waived his Miranda rights before taking the test); United States v. Little Bear, 583 F.2d 411, 414 (8th Cir.1978) (despite “concern” over procedure used by agents where record did not indicate that defendant could refuse to take polygraph test, discontinue it at any point or decline to answer questions, evidence supported trial court’s conclusion that she confessed voluntarily); State v. Morton, 155 N.J. 383, 715 A.2d 228, 262 (1998) (subjecting defendant to polygraph did not impugn volun-tariness of confession when interrogating officers advised him of right to refuse test, to discontinue test, and to refuse to answer any questions); Lee v. State, 338 So.2d 395, 397 (Miss.1976) (confession made following polygraph examination held voluntary when defendant consented to examination and was adequately advised of his rights prior to administration of test).
In addition, Detective Hytnel’s statement that “we got some serious talking we need to do” if defendant refused the polygraph did not render the subsequent confession involuntary as Agent Sparks subsequently administered Miranda warnings and informed defendant that he could refuse the polygraph before he submitted to the examination. Cf. State v. Istre, 407 So.2d 1183, 1187 (La.1981) (reh’g denied) (officer telling defendant that he would be taken upstairs and booked if he did not want to talk did not render confession involuntary). Accordingly, defendant does not show that the court erred when it deemed the confession 12oadmissible merely because it occurred after he voluntarily submitted to the polygraph examination.
C. The state did not fail to advise defendant that he could terminate the interrogation.
Next, defendant claims that “[t]he transcript of the interrogation ... reflects that the initial provision of rights did not inform” him that following his initial waiver, he could later exercise his right to refuse to answer additional questions. As a result, he claims that the Miranda warnings were insufficient and hence that his confession should have been excluded.
Although officers did not expressly inform defendant that he could exercise his right to cease answering questions during the interview, he fails to show grounds for relief. Although Miranda zealously protects the right of an arrestee to terminate custodial interrogation at any point he chooses, 384 U.S. at 445, 86 S.Ct. at 1612, and the police must scrupulously honor the assertion of that right, Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), Miranda did not expressly require that advice as a subpart of the broader advisement with respect to the right to remain silent. State v. Chevalier, 458 So.2d 507, 514 (La.App. 4 th Cir.1984). Further, the right to remain silent embodies the right to terminate questioning. It is the tool by which a suspect can control the time of questioning, the topics discussed, and duration of the session. State v. Phillips, 444 So.2d 1196, 1198, n. 5 (La.1984), (discussing Michigan v. Mosley); State v. Loyd, 425 So.2d 710, 716 (La.1982). As noted by the trial court in its ruling, officers administered Miranda warnings no less than nine times during the interview, and in these circumstances, defendant makes no showing that he did not know he could terminate the interrogation. This claim lacks merit.
D. The state did not erroneously fail to advise defendant of the charges against him.
Defendant also claims that the state’s failure to inform him that he faced first-degree murder charges rendered the waiver of Miranda rights involuntary.
laiAs an initial matter, as discussed above, defendant accompanied the officers to the sheriffs substation voluntarily and was free to leave before he finally confessed to the first murder. Because defendant’s presence was voluntary, the state was not required to inform him that it suspected his participation in the multiple murders. In any event, the officers had informed him by telephone several weeks earlier that they wanted to talk to him about multiple homicides in the area and reinforced that before the interview began. Further, defendant clearly knew why he was being interviewed as he stated that the purpose of the examination that the officers were “trying to find out where I get my money from and talking to me about these people [that] got killed.”
Moreover, after defendant admitted to killing Joan Brock, the state administered another set of Miranda warnings and defendant executed a written waiver which clearly states that the investigation related to “L.R.S. 14:30 Homicide.” Accordingly, defendant’s claim that that he did not knowingly waive his rights as a result of the state’s failure to set forth the charges against him lacks merit.
E. The Supreme Court’s recent holding in Missouri v. Seibert does not require reversal of the district court’s ruling admitting the statement.
Next, defendant claims that admission of his confession violated the United States Supreme Court’s recent holding in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), because the state failed to administer a complete set of Miranda warnings before acquiring the confession.
The Supreme Court held in Seibert that Miranda warnings given mid-interrogation and after the defendant had confessed were ineffective and thus a second confession repeated immediately afterwards was not admissible because “[u]pon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let la2alone persist in so believing once the police began to lead him over the same ground again.” Id., 124 S.Ct. at2611.
In this case, officers administered valid Miranda warnings immediately after defendant voluntarily accompanied them to the sheriffs substation. Defendant waived his Miranda rights, stating, “I’ll answer anything you ask, I mean I ain’t got nothing to hide.” Before making any inculpa-tory admissions, defendant received a second set of Miranda warnings from FBI Agent David Sparks who subsequently administered the polygraph test; and again, defendant waived his rights. All in all, defendant was Mirandized nine times. As a result, defendant shows no basis for suppression of his statement under Seibert.
F. Factual inconsistencies between the physical evidence and the confession do not demonstrate that it was involuntary.
Defendant also claims that the court erred when it did not take into account inconsistencies in his confession and the physical evidence when considering the issue of voluntariness. Specifically, defendant points to the portion of his confession in which he claimed that he entered the victim’s residence by prying open a vent hole in her roof, lowering himself into the attic, and then climbing down a ladder into her hallway. He maintains that entry in this manner would have been impossible because of the small size of the hole in the roof and evidence demonstrating that dust had not been disturbed on beams below the hole.
^However, even assuming the confession to Philippe’s murder contained some minor inaccuracies, Detective Toney testified that it also provided critical information about the crime that had not been released to the public, such as the fact that a trophy had been used to beat the victim during the attack, that the intruder had rifled through the victim’s purse and left it in her bathroom, that the safe was located in the bedroom closet, and that the attic ladder folded down into the hallway. Further, the defendant’s confession to the other murders contained details that turned out to be true and that only the murderer would know.
In any event, the truthfulness of the confession appears primarily an issue for the jury to decide when considering the sufficiency of the evidence rather than a critical factor for the judge to consider when deciding whether the statement was voluntary. See Jackson v. Denno, 378 U.S. 368, 386-87, 84 S.Ct. 1774, 1786, 12 L.Ed.2d 908 (1964) (holding that truthfulness of confession is irrelevant to the vol-untariness inquiry); Doby v. South Carolina, 741 F.2d 76, 78 (4th Cir.1984) (trial court erred by considering truthfulness of confession when determining statement’s voluntariness). Thus, even assuming some minor inconsistencies in defendant’s statement and the physical evidence, he fails to show the court erred when it admitted the confession.
II. Voir Dire Errors
A. Defendant’s challenges for cause to prospective jurors based on their inability to return a life sentence.
In this argument, defendant claims that the court erroneously ruled on various cause challenges based on six prospective jurors’ inability to consider both a life sentence and a death verdict when considering the appropriate penalty for first-degree murder.
The proper standard for determining when a prospective juror may be excluded for cause because of his views on capital punishment is whether the juror’s views would “prevent or substantially impair the performance of Ms duties as a juror in accordance with his instructions and his oath.” Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) (holding that a prospective juror who would vote automatically for a life sentence is properly excluded); see also Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985); State v. Sullivan, 596 So.2d 177 (La.1992), rev’d. on other grounds sub nom. Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). In a “reverse-^Witherspoon ” context, the basis of the exclusion is that a prospective juror “will not consider a life sentence and ... will automatically vote for the death penalty under the factual circumstances of the case before him....” State v. Robertson, 92-2660 (La.1994), 630 So.2d 1278, 1284. Jurors who cannot consider both a life sentence and a death sentence are “not impartial,” and cannot “accept the law as given ... by the court.” La.C.Cr.P. art. 797(2),(4); State v. Maxie, 93-2158, p. 16 (La.4/10/95), 653 So.2d 526, 534-35. In other words, if a prospective juror’s views on the death penalty are such that they would “prevent or substantially impair the performance of their duties in accordance with their instructions or their oaths,” 12Swhether those views are for or against the death penalty, he or she should be excused for cause. State v. Taylor, 99-1311, p. 8 (La.1/17/01), 781 So.2d 1205, 1214.
A trial court is vested with broad discretion in ruling on challenges for cause, and these rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of discretion. State v. Cross, 93-1189 (La.6/30/95), 658 So.2d 683, 686-687. “A trial judge’s refusal to excuse a prospective juror for cause is not an abuse of his discretion notwithstanding that the juror has voiced an opinion seemingly prejudicial to the defense, when subsequently, on further inquiry or instruction, he has demonstrated a willingness and ability to decide the case impartially according to the law and evidence.” State v. Robertson, supra; State v. Cross, supra.
Prejudice is presumed when a challenge for cause is denied erroneously by a trial court and the defendant exhausts his peremptory challenges. State v. Robertson, supra at 1280; State v. Ross, 623 So.2d 643, 644 (La.1993). In Louisiana, a defendant must use one of his peremptory challenges curatively to remove the juror, thus reducing his remaining peremptory challenges, or waive any complaint on appeal. State v. Connolly, 96-1680, p. 8 (La.7/1/97), 700 So.2d 810, 818; State v. Bourque, 622 So.2d 198, 229-30 (La.1993); State v. Fallon, 290 So.2d 273, 282 (La.1974). An erroneous ruling depriving an accused of a peremptory challenge violates his substantial rights and constitutes reversible error. State v. Cross, supra at 686; State v. Bourque, supra at 225.
1. J.T.: Defendant claims that the court should have granted his challenge for cause to prospective juror J.T. because she indicated that she could consider a life-sentence only in circumstances in which the murder was “justified.” J.T. was among the first of three large panels of prospective jurors. She was questioned on voir dire in the fourth group in Panel One. The groups l^were first questioned as to death-phase qualifications and for cause challenges were made at that time. J.T. was challenged for cause and the trial court denied that challenge. The jurors in groups A-D of Panel One remaining after the for cause challenges then underwent general voir dire questioning and counsel were given the opportunity to exercise their peremptory challenges. Instead of exercising one of his twelve peremptory challenges then available against J.T., defense counsel agreed with the State that she be selected as a juror, and she did indeed sit as a juror. Because he did not exercise an available peremptory challenge against J.T., any erroneous ruling by the trial court did not deprive defendant of a peremptory challenge; thus, defendant waived his right to assert this claim on appeal. State v. Connolly, supra at 818; State v. Bourque, supra at 229.
2. J.F.: Next, defendant claims that the court erred when it denied his challenge for cause to J.F. because he “unequivocally expressed the opinion that he would automatically vote for the death penalty under the circumstances of the case.”
J.F. appeared on the same panel as J.T. and when initially examined by the state, he indicated that he could consider mitigation evidence before deciding on an appropriate sentence. Specifically, he answered that he would not disagree that a person’s mental state and capacity was a mitigating factor that the jury must consider, and he agreed that a mental disease or defect or drunkenness was a mitigating factor a juror must consider. He also agreed that “if the circumstances justify it,” he could consider voting for both life imprisonment and the death penalty. Defense counsel followed up on J.F.’s attitude concerning mitigation evidence. After J.T. answered a question indicating her opinion that she would not consider mitigating factors in the case of an aggravated burglary, Defense counsel asked:
Q: Okay. That’s what I’m trying to understand. Mr. J.F., about what you [sic]?
A: Yes, sir. If the evidence is proved, proved beyond a reasonable doubt, I could consider the death penalty. I can consider the circumstances.
Q: The mitigating circumstances?
127A: Yes, sir.
Q: Okay. You can understand that the mitigating circumstances are not an excuse for anything.
A. Yes, sir.
Q: It’s not saying it’s okay to do it if you have one of these mitigating circumstances.
A: Yes, sir. And if the evidence if there to prove beyond a reasonable doubt that the crime was committed, I can consider the death penalty.
Q: Okay. But that would be after you considered the mitigating circumstances?
A: Yes, sir.
Q: And you’re not like — or, do you agree with some of the other individuals who testified and said that if it’s proven that Mr. Blank committed a murder, a homicide, killed an individual during the course of an [ajggravat-ed [b]urglary, that you would feel that automatically would make you — if it’s proven beyond a reasonable doubt and you’re satisfied that it’s been proved, that you would have to vote for the death penalty?
A: Yes, sir.
Q: You would?
A: Yes, sir.
Q: Is that the way you feel?
A: Yes, sir.
Q: As I said, there are not any right or wrong answers. We may have an individual up here that says, “I don’t know. I don’t think killing someone is that big a deal. I don’t think anybody ought to get killed for killing someone.” But nobody that I know feels like that.
But I’m saying the way we — the point I’m trying to make is that each of us feel a little bit differently about it. And each of us, if we are asked over a cup of coffee or a cold drink, “How do you feel about the death penalty,” say, “Well, I feel,” and you say it, and sometimes you haven’t even thought about it that much. This is when it’s time to fish or cut bait. We have to decide how we feel about it. Under oath and talking to lawyers that go on and on and on. Okay?
What I am saying is are you telling me that if an individual is convicted of going in someone’s home and killing the individual while they are in there that you would have to vote for the death penalty?
1 2rA: Yes, sir.
Q: And you would do that automatically? That’s the way you feel?
A: Yes, sir.
Q: And the mitigating factors, the fact that someone was young or didn’t have a prior record, wouldn’t even come into your mind?
A: Well, there are — yeah, the mental, intoxication, there would be factors that I would consider, but under the circumstances — if—if the evidence has proved that it was done, I believe in the death penalty, yes, sir.
Q: Okay. But you would consider some of these?
A: Yes, sir.
Q: Which ones? You said mental?
A: I could consider the mental, yes, sir.
Q: What about the fact that the person didn’t have any prior criminal record; would that bother you?
A: That wouldn’t swing me, no, sir.
Q: That would make any difference to you?
A: Not really.
Q: Okay. Let me ask you this. At the second phase of the trial, what we call the penalty phase, the second trial, if the second trial is ever reached, the State is allowed to bring out what is called evidence about the character and propensities of the person accused. Okay? And they can bring out anything that fits under the law.
If it were shown at this second trial that the person being tried had committed another murder, an unrelated murder, not the one he’s on trial for, but a separate murder, would that keep you from considering any mitigating circumstances? Would that cross the line in your mind?
A: Well, I would say — umm—it might throw out the mitigating — yeah, it might throw out the circumstances.
Q: The point I am trying to make is I believe that there is probably some point in everyone’s mind where they would agree that mitigating is just humbug. Okay? Mr. L. talked about if Hitler came back. Okay? Hitler was a terrible person responsible — that was before your time, but I assume everybody knows about Hitler.
A: Yes, sir.
I29Q: He was responsible for millions of deaths. Okay? And I’m sure that many, especially people from that time, many jurors that would sit there and I would say, “Can you consider these mitigating circumstances in regard to Mr. Hitler,” and they would have to say, “No. Too bad. What he did was too bad. None of these would have any impact.” Okay?
I’m saying if you could backwards from a million—
After the State objected to defense counsel’s questioning regarding Hitler, and after the trial judge instructed the prospective jurors on the guilt and penalty phase, questioning of J.F. continued:
Q: Mr. J.F., I don’t believe we have finished. When we were talking a moment ago, we were talking about there being circumstances in which you would reach a point where you could no longer or would no longer consider any mitigating factors; is that right?
A: Yes, sir.
Q: And I had talked about Hitler, if Hitler were on trial and you knew of all the millions of people that he had killed, that might be a situation where you would say, “I’m sorry. It’s too bad a situation. I can’t consider it. I’m voting for the death penalty, period. I am not going to think about those.” Do you understand what I’m saying?
A: Yes, sir.
Q: And I asked you — and I’m sure that there is some point for everyone, but I would ask you if the fact that there was maybe multiple homicides, more than one person killed in a situation, would that keep you from considering mitigating evidence?
A: Yes, sir.
Q: And that’s just the way you feel?
A: Yes, sir.
Before denying the challenge, the court summarized J.F.’s responses on the questionnaire and testimony at voir dire:
“I believe the death penalty should be around. If someone should commit a serious crime punishable by the death penalty, it should be enforced ... would consider ‘drunk’ as a mitigating circumstance, yes.” “If circumstances showed it, could you vote for death?” “Yes.” “If circumstances showed it, could you vote for life?” “Yes.” “If evidence proved beyond a reasonable doubt death penalty, I could consider the mitigating circumstances ... after considering the mitigating circumstances ... if guilty beyond a reasonable doubt, vote for the death penalty.”
“If convicted ... going into someone’s home ... vote for the death penalty.” And you were asking there whether or not that would be automatic. “There would be factors I would consider. Mental, drunk could consider mental.” “No prior criminal record?” He said, “Wouldn’t sway me.” Now, that’s not saying he wouldn’t—
He didn’t say he wouldn’t consider it. He said that that particular factor wouldn’t sway him. Well, in any one of those lists there might be a factor that wouldn’t sway you, but he said he would consider them all. “If shown defendant had committed another murder, would that cross the line?” “Yes, it might throw out the mitigating circumstances.” “If Hitler came back,” etc....
I don’t think he is a cause. I think he stays.
Defendant exercised a peremptory challenge against J.F. Defendant maintains that the court’s ruling violated Wither-spoon because the juror’s last responses suggested that he would not consider mitigation evidence in a case involving multiple killings. Given the state’s expected (and actual) presentation of evidence that defendant committed multiple murders, defendant claims that J.F. was not competent to serve.
As we explained in State v. Ducky, even a strong predisposition towards capital punishment does not disqualify a prospective juror, or at least a trial judge does not abuse his or her broad discretion by so finding, if the juror’s responses as a whole fairly support a conclusion that the juror would keep an open mind about penalty, no matter how grudgingly, until all of the evidence has been presented. State v. Lucky, 96-1687 (La.4/18/99), 755 So.2d 845, 851 (“[T]he trial judge perceived [the juror’s] responses to mean that his predisposition toward the death penalty, balanced with a willingness to consider mitigating circumstances and to credit those that he deemed ‘pretty heavy,’ did not significantly impair [the juror’s] performance of his duties as a juror in accordance with his instructions and his oath.”). In this grey area, “the critical determination of whether such predisposition constitutes substantial impairment is within the province of the trial judge’s discretion.” State v. Higgins, 03-1980 (La.4/01/05), 898 So.2d 1219, 1238 (citing Lucky, supra at 850-51).
LiThis Court has been confronted with this vexing issue numerous times. In some cases, the denial of a challenge for cause constituted reversible error. See State v. Divers, 94-0756, pp. 8-13 (La.9/5/96), 681 So.2d 320, 324-27 (challenges to two jurors who felt that any “deliberate” or “intentional” killing merited the death penalty should have been granted); Maxie, supra at 537-38 (error not to disqualify juror who could listen to mitigating evidence but viewed death as the only appropriate penalty, “[o]nce the crime guilt is established”); Robertson, supra at 1281-84 (error not to grant challenge for juror who would vote automatically for death if the accused were convicted of the double murders charged;) Ross, supra at 644 (error to deny challenge for juror who felt that the “only penalty” upon conviction of first-degree murder was death). See also State v. Jacobs, 99-1659 (La.6/29/01), 789 So.2d 1280 (error to deny a challenge for canse to two prospective jurors who expressed a pro-death sentiment, where there was no attempt to rehabilitate them and voir dire was devoid of any meaningful discussion by the state, defense counsel, or the trial judge of the role mitigating circumstances play in Louisiana’s bifurcated capital sentencing procedure).
However, other jurisprudence has upheld trial courts’ determinations that the juror was not disqualified by his or her predisposition towards the death penalty. State v. Juniors, 03-2425 (La.6/29/05), 915 So.2d 291; State v. Higgins, supra at 1236-39; State v. Ball, 00-2277, pp. 11-25 (La.1/25/02), 824 So.2d 1089, 1101-1111; State v. Lucky, supra at 848-51; State v. Taylor, supra at 1215-16; State v. Chester, 97-2790 (La.12/1/98), 724 So.2d 1276, 1284-86; State v. Hart, 96-0697 (La.3/7/97), 691 So.2d 651, 656-58. In Juniors, for example, the prospective juror stated flatly that she believed in the proverbial and Biblical “eye for an eye,” which meant, in a capital case, death for death. In Ball, one of the challenged jurors expressed her opinion that she would automatically vote for death in any case in which the offender intentionally killed. In each instance, the Court found, after a painstaking parsing of the jurors’ responses as a whole, no abuse of discretion by the trial court in denying the cause challenges. Thus, in Juniors, further questioning by defense counsel, which led the juror to state that she would not violate the law and that she would abide by an instruction from the court to consider any mitigating evidence, sufficiently rehabilitated the juror. Juniors, supra. In Ball, although neither the state nor the court attempted to rehabilitate the juror, the Court found that the totality of the juror’s responses, including those to general questioning which indicated that she could consider both death and life imprisonment, reflected her “ability to consider the whole picture before deciding what sentence to impose.” Ball, supra at 1108.
Considering the above, we find that the trial court did not abuse its discretion in refusing to disqualify J.F. for cause. Here, the trial court’s ruling raises a difficult question because the discussion of multiple murders occurred in the context of the extreme Adolph Hitler hypothetical. Clearly, a person’s attitudes towards Hitler do not serve as a litmus test for selection on a capital jury. That a juror could vote for death in Hitler’s case but would hesitate to do so in any other case does not disqualify him for jury selection under Witt’s “substantial impairment” standard; nor would a jurors belief that no amount of mitigating evidence would lead him or her to spare Hitler’s life disqualify the juror from service under the same standard if he or she expressed a willingness to consider mitigating evidence in less extreme circumstances more akin to the facts of the particular case. In addition, a defendant who has committed multiple murders is scarcely in a position to complain that jurors may express a strong predisposition towards the death penalty under those circumstances. The best he can reasonably hope for is that the juror will not reach his sentencing determination until all of the evidence has been presented and argued and will [.^consider, but not necessarily be convinced by, the mitigating factors presented. Given J.F.’s general statements that he would consider mitigating circumstances before imposing a penalty, and that he would consider certain mitigating circumstances in the case of a home-invasion murder, the trial court could reasonably have understood the prospective juror’s comment about multiple homicides as reflecting nothing more than agreement with defense counsel in principle that some cases (such as Hitler’s) are so extreme that mitigating evidence simply drops out of the picture. Given the vast discretion given to trial courts in this area, and considering the judge’s close attention and consideration to this juror, we find that the trial court did not err in denying this challenge for cause.
3. D.H.: Next, defendant claims that the court should have granted his challenge to prospective juror D.H. because his responses demonstrated “that the only mitigation he would consider was innocence.”
Like the rest of the jurors on his panel, when examined by the state, D.H. stated that he would consider mitigation evidence and “sure could” vote for life if the circumstances dictated it was the appropriate punishment.
Later, when examined by the defense, D.H. stated that he would also have to consider the impact his decision would have on the victim’s family. When counsel asked if his responses indicated that he would be leaning towards returning a death verdict before considering any evidence presented at the sentencing hearing, D.H. stated, “Well, it all depends on what I hear. I would keep all of this in mind, but you’ve got to think who — it could be your family, I mean.” The following exchange then transpired:
Q: If you’re thinking, “Someone is convicted of First Degree Murder and that could be my family, so I want the death penalty for them just like I would want the death penalty for somebody that is murdered in my family?”
A: If it’s proven, right.
Q: So you would be for the death penalty?
A: Right. If it’s proven.
Q: If he’s proven guilty of First Degree Murder?
I34A: Right.
Q: I’ve got to write that down. I will forget it if I don’t. And that’s the way you feel, and I’m not going to talk you into it or out of it?
A: Well, I mean, I’m going to take all of that into consideration, too, but I mean, I would have to weigh it — I’d be leaning that way.
The court denied defendant’s ensuing challenge for cause, summarizing the juror’s testimony:
D.H. “Could vote for the death penalty. Could vote for life. Sure could. He was a man of one word on his questionnaire. What do you think about it, and he just put, “Good.” “Could you vote if your vote put him to death?” “Sure could. I kind of feel like [prospective juror] Mr. H. You’ve got to think of the family. If he’s proven guilty, I can consider all of this, but I’ve got to think the other way too. Life, death, can do it.”
.... “All depends on what I hear. I’ll keep all of this in mind, but you’ve got to think it could be my family.” “Death penalty, if proven guilty, First Degree Murder. I am going to take all of this into consideration too, but I am leaning that way.”
Effect of multiple homicide, it would be the same. I kind of agree with [the state’s argument] that the defense got to loading the wagon with the questions and how horrible they ended. I don’t think and I don’t put D.H. and [excused juror] H. in the same bucket, so to speak, so I say no challenge for cause.
Defendant subsequently exercised a peremptory challenge against D.H.
The court’s reference to counsel’s inquiries suggests its belief that the defense could not demonstrate prospective jurors’ inability to consider voting for life imprisonment merely by proposing to them the most gruesome scenarios and then showing that in those eases, they expressed serious reservations about whether they could be swayed by mitigation evidence. As discussed above, a juror’s attitude toward extreme hypothetical situations— Adolph Hitler or the murder of the juror’s family member — does not serve as a fair litmus test of the juror’s qualification to sit on a capital case. In the end, that D.H. would be leaning towards capital punishment yet still able to consider mitigating circumstances, did not disqualify him.
Given the deference afforded to the trial court and the defense’s failure to show D.H.’s answers demonstrated that he categorically would not consider mitigation [S5evidence, defendant fails to show that the court erred when it did not excuse the juror for cause.
4. J.D. Next, defendant claims that the court should have excused J.D. because “he would vote for the death penalty upon a guilty verdict for first degree murder.”
The substance of J.D.’s voir dire testimony resembled that provided by D.H. When questioned by the state, the prospective juror initially indicated that he could vote for either life imprisonment or the death penalty and would consider mitigation evidence.
However, when defense counsel questioned the panel, the following exchange occurred:
Q: What if it were shown that there were four or five murders; would you still consider the mitigating factors before you would vote?
A: (Owen Breaux, Jr.) You would have to weigh everything, yes, sir.
Q: What do you think, Mr. J.D.?
A: (J.D.) I’m basically the same way he feels. I would consider the circumstances. But my honest, real feeling on the matter is if somebody commits that type of crime, that’s what I would want done if that crime was done to me or somebody in my family. That’s the way I would feel....
Q: ... [I]f you say, “I think if someone kills someone the proper penalty is death, and that’s the way I feel, period,” we don’t send you home with an “F” on your report card. We are just trying to find out. If that’s the way you feel, that’s the way you feel. Would that be an accurate description of your feelings?
A: Yes, sir.
Q: Okay. And if someone takes a human life, and they are proven guilty of First Degree Murder where there’s no excuse for it, then you would vote for the death penalty?
A: Yes, sir.
Q: And mitigation would be nice, but in your mind you would be death penalty all they way?
A: Yes, sir.
Q: I seem a little apologetic for that. I hope I’m not — there’s nothing — like I said, some people feel, “No death penalty under any circumstances. I don’t want to be a part of it.” And that’s a correct answer. If you say, “If someone kills someone, I feel IsfiStrongly enough about it that I think that they ought to be killed themselves after he’s proven guilty,” then there’s nothing wrong with that.
A: The only way I can come about trying to think about this would be, you know, if he did it to someone in my family. That’s the only way I can think of it.
The court denied the defense challenge for cause, summarizing J.D.’s comments:
“If a person has taken someone’s life, he or she should receive the death penalty” That’s what he put on the questionnaire. “The only way to answer, if a loved one had that done to him, would you consider death?” “Yes.” “Would you consider life?” “Would you consider mitigating circumstances?” “Yes.”
By [the state] “If it was one or 100 people, would you consider mitigating circumstances?” And he says, “Yes.”
Then you asked [prospective juror] Mr. Breaux some questions. The Defense asked Mr. Breaux some questions about, “Would you consider or would mitigating factors go to second phase, would you go in with an open[ ] mind?” And he said, “Yes.” “Four or five murders?” He said he would have to weigh the circumstances.
Then you jumped to Mr. J.D. and asked him the same question about if there were four or five. He says, “I feel like Mr. Breaux, but if done to a member of my family it’s no excuse.” “Mitigating would be nice,” says [defense counsel] “but in your mind you would be for the death penalty all the way?” And he says, “Yes. The only way I could think about this, if it would be some member of my family.”
And I think he is saying if you kill some member of his family then he’s not going to consider anything whatsoever.
* 5¡í *
But he has given enough positive answers to mitigating factors that you don’t get a challenge for cause on him.
Defendant subsequently exercised a peremptory challenge against J.D.
J.D.’s statement that he would vote for death in any case involving the death of one of his family members did not disqualify him from service on the jury in the present case which had an entirely different set of circumstances. Further, J.D. initially stated that he could consider mitigating circumstances and he even agreed with prospective juror Breaux that he would do so in a case involving four or five murders. J.D. may have understood counsel’s questions to refer specifically and only to the situation in which the victim was a member of his own family. Given this ambiguity and considering his responses in their entirety, the trial court did not abuse its discretion in denying the cause challenge on the basis of the prospective juror’s remarks in their entirety.
5. D.P.: Defendant alleges that the court erroneously denied his cause challenge to prospective juror D.P. as he stated that he would impose the death penalty because “it is needed” as a deterrent.
When examined by the state, D.P. indicated that he could vote for life imprisonment “if the circumstances justified it.”
On cross, after defense counsel inquired about a case involving multiple murders, the prospective juror maintained that he would consider mitigating evidence but stated he would vote for the death penalty “[i]f it’s needed” and agreed that its imposition could have a deterrent effect. Later, in response to defense counsel’s leading questions, he indicated that that while he would “think about and consider” the statutory mitigating circumstances, he would vote for the death penalty if the state proved defendant’s guilt beyond a reasonable doubt.
After the parties presented argument on the issue of the defense cause challenge to D.P., the court summarized the prospective juror’s responses to inquiries about imposition of the death penalty:
Okay. Youth of the defendant as a mitigating circumstance. “Could you consider?” “Yes.” ... “If circumstances showed it, could you vote for the death penalty?” “Yes.” “If circumstances showed it, could you vote for life?” “Yes.” “If the decision was yours to make ... ?” Yes, he could make it.
“Mr. D.P., what about — ” and you gave an example that I didn’t write down [defense counsel]. “I would consider mitigating circumstances. I say the death penalty is needed. If in the back of somebody’s mind,” meaning the death penalty, “if I do this and there is a death penalty it is a deterrent,” so he thinks it’s a good thing. “If I was ordered by the Q]udge ... I would consider mitigating circumstances.” And then [defense counsel] asked him, “If the [j]udge told you to fly out of the chair ...,” and he says, “Well, I would protest. I might hurt myself and I don’t think that would be a wise thing to do.” I think that was kind of an off-the-wall question.
Considering mitigation factors. “I guess I would consider.” “But you would still go for the death penalty?” “I would consider but strong feeling a death penalty appropriate.” “If he had a good work ashistory, I would consider it, but if it’s needed I would go for the death penalty.” I think he stays.
Defendant subsequently exercised a peremptory challenge against D.P.
Like the majority of the court’s rulings on defendant’s reverse-Witherspoon challenges, it would certainly have been preferable had D.P. been rehabilitated following his responses to defense counsel’s somewhat-leading inquiries concerning his ability to give meaningful consideration to mitigation evidence. Nonetheless, the trial court fairly described D.P.’s testimony and defendant fails to show that it abused its discretion when it determined that his attitudes about the death penalty would not substantially impair the prospective juror from voting for life imprisonment.
6. W.E.: Defendant claims juror W.E. should have been removed for cause because his testimony indicated that he would automatically vote for the death penalty notwithstanding any mitigation the defense might introduce if the state demonstrated that he committed “a series of aggravated burglaries where people were killed.” However, just like J.T., because defense counsel failed to exercise one of its twelve available peremptory challenges against him, this claim is waived. State v. Connolly, supra.
III. Other Crimes Evidence
In these arguments, defendant claims that the court erred when it admitted evidence at the guilt phase of five other capital murders and two attempted murder to which defendant confessed. First, defendant maintains that the state failed to provide timely notice concerning its intent to introduce the evidence. Then, in related arguments concerning the substantive ruling about the state’s introduction of the other murders, defendant first claims that the state introduced the evidence for the prohibited purpose of showing that he acted in conformity therewith and to demonstrate modus operandi. On the issue of intent, he claims that because the [^interrogators’ questions prompted defendant to claim that he acted in self-defense when he killed the victim, the state should not have then been permitted to introduce the other murders to show that he possessed the specific intent to kill or inflict great bodily harm in the instant case. Moreover, he claims that even if the evidence was relevant to demonstrate intent, the court should have nonetheless excluded it given the overwhelming prejudicial effect admission of the multiple murders would have on the jury. Finally, he claims that the court read an erroneous limiting instruction concerning the crimes evidence.
Evidence of other crimes, wrongs, or acts is generally inadmissible to impeach the character of the accused. La. C.E. art. 404(B); State v. Talbert, 416 So.2d 97, 99 (La.1982); State v. Prieur, 277 So.2d 126, 128 (La.1973). However, such evidence may be admissible to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or ... (res gestae).” La. C.E. art. 404(B)(1). When the other crimes are offered for a purpose allowed under Article 404, the state is required to prove that the defendant committed these other acts by clear and convincing evidence. See State v. Davis, 449 So.2d 466, 468 (La.1984). Additionally, the state must provide the defendant with notice before trial that it intends to offer prior crimes evidence. Prieur, 277 So.2d at 130. Even when other crimes are relevant, the probative value of unrelated offenses must be weighed against their possible prejudicial effect. Id., 277 So.2d at 128.
First, defendant claims that the state’s notice that it intended to introduce evidence of other crimes, filed approximately one month before trial and well beyond the court’s deadline of November 1,1998, for filing pre-trial motions, was not timely nand “therefore should have been denied outright as untimely and inadequate.” However, even assuming that the state’s notice of its intent to introduce the other crimes evidence was not filed in a timely manner, not every violation of pre-trial procedures, including Prieur violations, requires reversal. Before a defendant can complain of such a violation, he must show prejudice. State v. Sanders, 93-0001, p. 14 (La.11/30/94), 648 So.2d 1272, 1284 (citing State v. Hooks, 421 So.2d 880 (La.1982)); State v. Strickland, 398 So.2d 1062 (La.1981). Prieur speaks of the “substantial risk of grave prejudice” to a defendant arising out of inadmissible or surprise admission of other crimes evidence, but does not presume that prejudice. Prieur, supra at 128.
In this case, notwithstanding the state’s failure to file its formal Prieur notice earlier, defendant clearly knew that the state would introduce evidence of the other crimes at the penalty phase, given the court’s ruling on April 12, 1999, which held the evidence admissible. Notably, defense counsel did not object to the lack of notice at the Prieur hearing held on August 5, 1999. Moreover, despite the late hearing about admission of the evidence at the guilt phase, defendant makes no showing how his strategy would have been different had he received notice earlier. Because defendant does not demonstrate prejudice resulting from the state’s untimely filing, he shows no basis for relief under the notice requirements of Prieur and Sanders. Accordingly, 1 defendant’s claim concerning the state’s purportedly insufficient notice that it would introduce the other crimes evidence does not warrant relief.
As to the substantive claims concerning introduction of the evidence, the court focused on the portion of the confession in which defendant claimed that he killed the victim after she confronted him and relied in part on State v. Kahey, 436 So.2d 475 (La.1983) to rule as follows:
Since the defendant intimates that he only hit and cut Mrs. Philippe after she attacked him he places his “intent to kill or inflict great bodily harm at issue.” The evidence of the other crimes tends to shed the light on the doctrine of chances and repetition of instances on whether or not his actions as to Mrs. Philippe were “inadvertent, accidental, unintentional or without guilty knowledge.” McCormick on Evidence, § 190 at 45 cited at page 487 of the Kahey case. It appears that the three (3) prerequisites of Kahey as to intent are satisfied. Knowledge, system mo-dus operandi of the defendant are likewise present.
La. R.S. 15:445 provides that “in order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transactions.” In Kahey, this Court explained that before other crimes evidence can be admitted as proof of intent, three prerequisites must be satisfied: (1) the prior acts must be similar; (2) there must be a real and genuine contested issue of intent at trial; and (3) the probative value of the evidence must outweigh its prejudicial effect. 436 So.2d at 488. See also State v. Williams, 96-1023, p. 30 (La.1998), 708 So.2d 703, 725-726 (evidence demonstrating that the defendant shot a man during a robbery just hours before the crime charged was admissible in a first-degree murder prosecution because evidence of the earlier shooting was relevant to show that the defendant intended to fire the gun at the victim even though he claimed that the gun accidently went off); State v. Jackson, 625 So.2d 146, 150 (La.1993) (“[when] the element of intent is regarded as an essential ingredient of the crime charged, it is proper to admit proof of similar but disconnected crimes to show the intent with which the act was committed.”).
Here, evidence that defendant killed or attempted to kill the occupants of several other residences during the commission of aggravated burglaries meets all the ^requirements of Kahey. First, the acts were similar, in that they each involved home invasions where defendant entered the home to steal money, was caught by the resident, each of whom were somewhat elderly, and then killed or attempted to kill the resident.
Second, specific intent was a genuine issue at trial, in that it is an essential element of the crime, and was contested. This evidence undermines that portion of his confession indicating that the altercation resulting in the victim’s death occurred only after Mrs. Philippe struck him with a trophy as he attempted to exit the residence peacefully. Cf. State v. Martin, 93-0285 (La.10/17/94), 645 So.2d 190, 197-98 (Evidence that defendant had prior rape conviction and had declared that “he wasn’t going back to prison for nobody” admissible to show motive and specific intent to kill victim during perpetration of aggravated rape). However, despite his confession suggesting he acted in self-defense, defendant maintains that because he did not present evidence or argue at trial that he lacked specific intent, the state should not have been permitted to introduce the other crimes evidence to prove that element of first-degree murder. In so doing, he argues the state violated this Court’s holding in State v. Martin, 377 So.2d 259, 263 (La.1979), that “the prosecution cannot credit the accused with fancy defenses in order to rebut them at the outset with some damning piece of evidence.”
The state possesses the burden to prove every element of the crime, including specific intent, beyond a reasonable doubt. That being the case, because defendant maintained that he acted in self-defense in his confession, the state was entitled to present evidence to the contrary in support of its case. In a somewhat analogous situation, in United States v. Leight, 818 F.2d 1297, (7th Cir.1987), the defendant was accused of a child’s murder and claimed that the victim’s death was accidental. The 7th Circuit Court of Appeals held that evidence regarding the defendant’s Sphysical abuse of other children in her care was admissible to prove that the victim’s death resulted from physical abuse. Id. at 1303; cf. United States v. Brantley, 786 F.2d 1322, 1329 (7th Cir.1986) (when a defendant is charged with a crime and specific intent is an essential element of that crime, the government may introduce evidence of prior or subsequent acts to establish the element of intent even if the defendant has not placed his intent into question).
Moreover, defendant’s claim that he did not contest the issue of intent lacks a factual basis. In fact, the record reveals that in his closing, defense counsel strenuously argued about the state’s lack of evidence on the issue as follows:
There’s insufficient evidence on the element of intent. The [defendant never said he intended to kill anyone. The evidence shows he never took a weapon with him to the residence, the Philippe residence. For that matter, to any of the residences. You heard the testimony today, the police officer himself said, “Well, he never took a weapon with him.”
So that gives you — there’s some physical evidence you can look at. There’s some hard direct testimony from a police officer showing you that he did not have intent to kill. And that’s real important, because that may save us several weeks.
* * *
You can’t have your cake and ... eat it, too. If they [the prosecution] want the confession, if they want to eat it, then they are going to have to eat it, because the officers themselves on there say, “You didn’t intend to do this. I know you didn’t intend to do it.” There is no intent. “You didn’t mean it.” How many times did you hear that kind of testimony?
We find the other crimes evidence met the second requirement of Kahey.
As to the third element of Kahey, defendant argues that the court erred when it admitted proof of the five other murders and two attempted murders given their enormous prejudicial effect. In fact, the vast majority of the guilt phase of the trial involved the introduction of evidence of the unrelated murders, not limited to defendant’s statement about the crimes but also including testimony from the victims’ relatives and pathologists who provided information about the causes and manners of death.
In support, defendant points to State v. Morris, 362 So.2d 1379 (La.1978), in which this Court held that in a prosecution for the first-degree murder of the defendant’s juvenile son, two prior crimes involving other children (the hitting of a child with intent to injure him in Texas and a Louisiana crime of unintentional killing) were inadmissible to prove intent because the prejudicial effect, “far outweighs whatever probative value it might have ... especially if the state (as it indicates) intends to go into extensive details as to the circumstances of the previous offenses.” Morris, 362 So.2d at 1382; but see Marcus, J., dissenting (“I consider that evidence of defendant’s previous convictions for the aggravated assault on one child and manslaughter of another infant child would be admissible to show her intent to kill or to inflict great bodily harm on her victim child injured in this case.”). Id. 362 So.2d at 1383. However, in Kahey, this Court held evidence of the serious mistreatment of 12 other children in defendants’ home was admissible to prove intent.
Ultimately, however, even assuming that the court should have not admitted the voluminous evidence detailing all of the other murders, there is no reasonable possibility that admission of the evidence had any effect on the jury’s guilty verdict and was thus harmless. See State v. Johnson, 94-1379, p. 15 (La.11/27/95), 664 So.2d 94, 101 (erroneous admission of other crimes evidence is subject to harmless-error analysis under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) standard). At trial, defendant was faced with the hard fact that he voluntarily confessed to five home-invasion murders in one statement. The State was entitled to present this evidence to show his intent to kill Mrs. Philippe. Assuming that jurors considered the evidence for the limited purpose of ascertaining defendant’s intent during his fatal encounter with Mrs. Philippe as they were instructed, the fact that the state was able to present all five murders is no more prejudicial than if they had just presented proof of two or three, which they clearly would have been entitled to do.
^Defendant’s claims concerning the admission of other crimes evidence at the guilt phase do not warrant relief.
IV. Defendant’s claim that the trial court erred in: (1) preventing him from introducing the entirety of the custodial statement and the testimony of the officer who administered the polygraph; and (2) curtailing cross-examination concerning the tactics used to secure the confession.
In this argument, defendant claims that the court violated his right to confront witnesses and present a defense when it excised from his videotaped confession the entire portion in which he was interrogated by the officer who administered the polygraph examination, FBI Agent Sparks, and did not allow him to call Sparks as a witness.
After the trial court denied defendant’s motion to suppress the other crimes evidence, which evidence was to be introduced by way of the 12-hour confession, defendant sought to introduce the 12-hour confession in its entirety, including the portion of the interview conducted by Agent Sparks. However, the court ruled that the videotaped interrogation “can be shown to the jury for evaluation except that portion showing the polygraph examination” and that “[i]n accordance with State v. Arnold, 533 So.2d 1311 (La.App. 3 Cir.1988), any reference to the polygraph statements of the defendant are ordered excised ...” The record reveals that defendant lodged an objection at trial concerning the court’s ruling which prohibited the presentation of the portion of the videotape making any reference to the polygraph and eventually moved for a mistrial arguing:
The [sjtate did not play the tapes in their entirety in violation of 15:450. And as Your Honor knows, Title 15 requires that they be played or used in their entirety. That’s one ground.
And then finally, also the defense was not allowed to call FBI Agent David Sparks who, as we all know, did administer the polygraph examination; but more so, we were not allowed to question him about information that he imparted to the [djefendant giving specific facts in questioning him on the case.
The state responded that it could not examine Sparks because:
... he’s a polygraphist or a polygraph examiner, there was no way the [sjtate could call him without letting the [jjury know who he was. And the [cjourt ruled that any reference to Mr. Sparks was not to be shown to the [jjury. The burden is to prove, prior to the admission of the confession to the [jjury, under 14:451, if I’m not mistaken, that the confession was free and voluntary and not made under the influence of any fear, duress, intimidation, menaces, threats, or inducements of [sicj promises. We believe we met that burden with the testimony of the officers that testified; and therefore, any particular objection should be overruled by the [djefendant as it concerns that matter.
The court denied the defense motion for a mistrial, ruling as follows:
... All right, Motion for a Mistrial, 15:450, to be used in its entirety. As has been said many, many times, if you do have a confession and it does make reference to other inadmissible crimes, the defense has the option of saying, “Leave out the inadmissible crimes or do the whole thing in its entirety.” There was an early decision by the defense, leave out the inadmissible crimes that didn’t have to do — that didn’t have to do with Attempted Murder or Murder, or something like that.
So once that was done, then the question came up of the polygraph. The [cjourt ruled the polygraph inadmissible and gave you reasons and a[c]ourt decision saying you can’t even mention it. And because you can’t mention it, I said that Sparks couldn’t be called to testify. If you did call Sparks to testify, there was a great danger, “Who are you? Why are you there? What are you doing in this interrogation room?” The State v. Davis situation where you ask, “How do you know that the defendant, that this witness is telling the truth?” “Well, because I gave him a polygraph.” Grounds for a mistrial. So, there was a great danger with Sparks, and the Court made that ruling.
^Defendant asserts that the court’s ruling prevented him from presenting evidence to the jury concerning the most crucial portion of the interview — the two and one-half hour period during which he was interrogated by FBI Agent Sparks which was excised from the videotape. While defendant concedes that admission of the results of the polygraph were inadmissible, see State v. Catanese, 368 So.2d 975, 981 (La.1979), and its progeny infra, he claims that the state successfully shielded the jury from reviewing the coercive circumstances precipitating his confession by having the examiner conduct the interrogation.
First, defendant maintains that the frequent references (and defendant’s ultimate submission) to the polygraph would have, in and of themselves, demonstrated coercion to the jury and supported his claim that the confession was untrustworthy. See State v. Falter, 88 S.D. 685, 227 N.W.2d 433, 435 (1975) (“A defendant, when suddenly faced with the impersonal accuracy of a [polygraph] machine, may believe it is safer to confess and place himself at the mercy of the law rather than lie to the examiner and sacrifice any possibility of leniency.”).
In addition, defendant claims Agent Sparks employed the most coercive techniques of four officers conducting the interview, badgering him relentlessly until he confessed. Moreover, defendant claims that the excised portion of the Sconfession contains evidence of defendant’s physical discomfort, including portions in which he expresses that he is tired, cold, and experiencing nicotine withdrawal, and in which he also vehemently maintains his innocence and indicates some confusion concerning his right to refuse the polygraph.
Finally, defendant notes that during Sparks’s interrogation, the agent provided details of Joan Brock’s murder before defendant ultimately confessed to that crime. ^Defendant maintains this information was critical to his defense because had it been available to jurors, they could have inferred that state agents had similarly provided him with details concerning the other murders, thereby undercutting the state’s claim that, despite the lack of physical evidence connecting him to any of the crime scenes, defendant had to be the assailant because in his confession he provided details of the crimes which had not been made public.
A criminal defendant has the constitutional right to present a defense. U.S. Const. amends. 6 and 14; La. Const. art. 1, § 16; Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986); State v. Van Winkle, 94-0947 (La.6/30/95), 658 So.2d 198, 201. A defendant should therefore be allowed to present evidence on any relevant matter. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, 1037. This right is not without limitation, and unreliable evidence may be barred from criminal trials. Id.
This Court has long adhered to the view that lie detector or polygraph test results are inadmissible for any purpose at the trial of guilt or innocence in criminal cases. Consistent with this view, the Court has “made it clear” the rule excluding polygraph evidence “also operates to prevent any reference during trial to the fact that a witness has taken a polygraph examination with respect to the subject matter of his testimony.” State v. Hocum, 456 So.2d 602, 604 (La.1984); State v. Tonubee, 420 So.2d 126, 132 (La.1982); State v. Davis, 407 So.2d 702, 706 (La.1981); State v. Can-tanese, supra at 981. Moreover, this Court has held that polygraph information and test results are inadmissible “ ‘either as substantive evidence or as relating to the credibility of a party or witness.’” State v. Humphrey, 445 So.2d 1155, 1158 (La.1984) (quoting State v. Tonubbee, supra at 132). The principle reasons such evidence is inadmissible are its lack of probative value, insufficient scientific reliability, and its potential for an unduly prejudicial effect on lay jurors. State v. Robertson, 97-0177 (La.3/4/98), 712 So.2d 8, 35.
In addition to implicating the rule that polygraph evidence is inadmissible in criminal trials, this case also involves the application of defendant’s statutory rights pursuant to La. R.S. 15:450 and La.C.Cr.P. art. 703(G). La. R.S. 15:450 provides that “[ejvery confession, admission or declaration sought to be used against anyone must be used in its entirety, so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford.” La.C.Cr.P. art. 703(G) states in part that “[a] ruling made adversely to the defendant prior to trial upon a motion to suppress a confession or statement does not prevent the defendant from introducing evidence during the trial concerning the circumstances surrounding the making on the confession or statement for the purpose of enabling the jury to determine the weight to be given the confession or statement.”
This Court has stated that La. R.S. 15:450 allows a defendant to insist upon the introduction of the entirety of a statement sought to be used against him, but his protection may be waived. State v. Haynes, 291 So.2d 771, 772 (La.1974). We have stated defendant’s options under La. R.S. 15:450 in the context of an issue of other crimes evidence as follows:
1 fii[W]hen the state seeks to introduce a confession, admission or declaration against a defendant which contains other crimes evidence, but which is otherwise fully admissible, the defendant has two options. He may waive his right to have the whole statement used, object to the other crimes evidence, and require the court to excise it before admitting the statement; or, he may insist on his right to have the statement used in its entirety so as to receive any exculpation or explanation that the whole statement may afford. A third alternative, that of keeping the whole statement out, is not available to defendant, unless of course, the confession is not admissible.
State v. Morris, 429 So.2d 111, 121 (La.1983); see also State v. Snedecor, 294 So.2d 207, 210 (La.1974); State v. Green, 443 So.2d 531 (La.1983), (rejecting the defendant’s claim that the court should have excluded his inculpatory statement in its entirety because it contained other crimes references and the statement had been made following the administration of a polygraph examination because he could have chosen to have the statement admitted in its entirety).
In the instant case, defendant sought to exercise his right under La. R.S. 15:450 to have his statement used in its entirety in order to show that his confession was coerced and involuntary. Based on the totality of the circumstances, we find that the trial court abused its discretion when it prevented the jury from viewing the interrogation of defendant by Agent Sparks over defendant’s objections.
Issln addition to letting the jury view the Sparks’ portion of the interrogation, the trial court should also have permitted defendant to examine Agent Sparks at trial. Defendant has a right to introduce evidence regarding the circumstances leading to his confession to enable the jury to determine the weight to be given the confession. La.C.Cr.P. art. 703(G); see also State v. Van Winkle, supra at 203 (“Ms. Van Winkle argues that the [district [cjourt erred in prohibiting her from presenting evidence as to her mental state when she gave the various statements ... If ... the statements are used, then the defendant is entitled to introduce ‘evidence concerning the circumstances surrounding the making of the confession or statement for the purpose of enabling the jury to determine the weight to be given to the confession or statement.’ ”) (quoting La. C.Cr.P. art. 703(G)); see also Crane v. Kentucky, supra, 476 U.S. at 689, 106 S.Ct. at 2146 (“[R]egardless of whether the defendant marshaled the same evidence earlier in support of an unsuccessful motion to suppress, and entirely independent of any question of voluntariness, a defendant’s case may stand or fall on his ability to convince the jury that the manner in which the confession was obtained casts doubts on its credibility.”); State v. Williams, 01-1650, p. 8 (La.11/1/02), 831 So.2d 835, 843 (Statutory rule of La. C.Cr.P. art. 703(A) which permits the defendant to introduce evidence at trial as to the circumstances surrounding his confession “has its underpinnings in the Due Process Clause and it necessarily operates independently of any credibility determinations the trial court made in ruling on the voluntariness of the statement as a matter of law.”)
Given the statutory and constitutional guarantees that entitle a defendant to present evidence in support of a claim of that his confession is unreliable as a result of coercive interrogation techniques, the trial court erred in excluding the entirety of Agent Spark’s interrogation of defendant and in prohibiting defendant from calling him as a witness.
That being said, the erroneous exclusion of this evidence is subject to the harmless error standard of review. In Crane, supra, a capital case in which the defendant’s entire defense was that there was no physical evidence to link him to the B3crimes and that, for a variety of reasons, his earlier admission of guilt was not to be believed, the United States Supreme Court found the erroneous exclusion of defendant’s testimony regarding the circumstances of his confession fell under harmless error review standards. See also, State v. Vaughn, 431 So.2d 358, 361-62 (La.1983) (on rehearing) (erroneous exclusion of evidence subject to harmless error analysis). As this Court explained in State v. Seals, 95-0305 (La.11/25/96), 684 So.2d 368, 377, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997), an error is harmless if it is unimportant in relation to the whole and the verdict rendered was surely unattributable to the error.
After careful review of the entire transcript of the 12-hour interrogation, including the portion where defendant was interrogated by Agent Sparks, and the videotaped version in the record, we find nothing to support defendant’s argument that had the jury seen the Sparks interrogation, they would have concluded that defendant’s statement was coerced. The record reflects that of the 194 page verbatim transcript of the entire interrogation, the Sparks’ portion is only 35 pages long, from page 61 through page 96. Most of the interrogation, 25 of the 35 pages, consisted of Sparks’ straightforward explanation of the polygraph system and of the eight exact questions he would ask during the polygraph, which he went over three times before the polygraph was even given. It was not until the polygraph was concluded at page 85 that Sparks first attempted to convince defendant to confess to the crimes, telling him that he did not think he was the kind of person to do these types of things, that something in him must have “snapped,” and that his family was still going to love him if he confessed. Sparks also told him that the investigation pointed to him as the right suspect, that they knew he did it, and that he “wouldn’t be sitting here talking to [him] if [he] passed the polygraph.” Contrary to defendant’s claims, we do not find that Sparks’ “badgered him relentlessly.” Had the jury heard the Sparks’ portion of the interview, either with or without the polygraph portion edited out, they would have found nothing to lead them to believe Sparks coerced defendant into confessing. Further, while they would have heard defendant did tell Sparks he was tired once mand cold three times, he never asked to stop the interrogation because of this. Further, Sparks assured him he would turn the heater on and evidently he did, because the third time defendant complained about being cold, defendant said they “must have turned that heater off again.” While he complained of nicotine withdrawal before the Sparks interview, he only asked to smoke once during the Sparks’ interview and he was eventually allowed to smoke. Finally, while he did consistently deny his ^involvement in the murders to Spark, we fail to see how this would have led the jury to disregard his subsequent lengthy and detailed confessions to the crimes.
Further, after reviewing the videotape of Detective Hymel’s interview of defendant immediately after Sparks had finished, it appears that the major precipitating factor in obtaining the confessions was not Spark’s interview, but was instead Hy-mel’s lengthy and emotional appeal to defendant to confess. For 20 uninterrupted minutes, Hymel calmly urged defendant to confess, mostly by referencing defendant’s recently deceased mother. Hymel told him that he thought his mother’s death had deeply affected him, that his mother would want him to confess, that he knew he really did not mean to hurt anyone, and that God and his mother would forgive him. While defendant consistently denied any involvement in the face of Sparks’ polygraph and subsequent questioning, after this long appeal from Hymel, defendant instantly broke down and confessed.
In addition, we reject defendant’s argument that had the jury seen the Sparks’ interview, they would have inferred that the other officers must have given defendant information about the ’crimes outside the view of the videotape. While the record reflects that while Sparks did tell defendant some details of the Brock homicide that were not public knowledge, Sparks did not give defendant any information about the other crimes. Defendant’s confession revealed other details that were not disclosed by Sparks about the Brock murder, and even provided a motive for the Brock killing that the officers were unaware of. Further, he gave details about the other crimes B7and were not public knowledge and that clearly Sparks did not give him. In addition, the officers testified that they did not give defendant any information about the other crimes, including the Phillipe murder, out of the view of the video camera, and this testimony was uncontradicted. That being the case, defendant’s claim that presentation of the evidence would have supported his contention that the state provided him with information about the Philippe murder is unfounded.
Accordingly, this argument lacks merit.
SENTENCE REVIEW
Under La.C.Cr.P. art. 905.9 and La.S.Ct.R. 28, this Court reviews every sentence of death imposed by the courts of this state to determine if it is constitutionally excessive. In making this determination, the Court considers whether the jury imposed the sentence under influence of passion, prejudice, or other arbitrary factors; whether the evidence supports the jury’s findings with respect to a statutory aggravating circumstance; and whether the sentence is disproportionate, considering both the offense and the offender.
The district judge has submitted a Uniform Capital Sentence Report (UCSR) and Capital Sentence Investigation Report (CSI), as La.S.Ct.R. 28 § 3(b) requires. In addition, the state has filed a sentencing memorandum and defendant has filed an opposition thereto.
These documents reveal that defendant, Daniel Joseph Blank, was 34 years old when he committed the instant offense. Defendant was born in Lutcher, Louisiana, to the legal union of Alice and Hypolite Clark. Defendant’s mother died in 1994 and his father testified at the sentencing hearing. Defendant has either four or five brothers and two sisters, and three of his siblings testified on his behalf at the HSpenalty phase. Penalty phase testimony from his relatives demonstrated that defendant had a very close relationship with his mother and had difficulty coping with her death. Defendant is divorced and has two children, a 19-year-old son and a 13-year-old daughter. Although the UCSR indicates that defendant was not supporting his children at the time of the offense, his son testified and stated that his father had “mostly” raised him. He also described defendant as “very compassionate” and an “excellent father.” At the time of the crimes, defendant lived with his girlfriend, C.B., and her two children, both of whom he supported. C.B. was originally charged with first-degree murder but the state granted her immunity in exchange for her testimony. Ultimately, however, she did not appear at either phase of the trial.
Defendant dropped out of high school after the eighth grade. Although the CSI states that “[t]he subject attended no Vo-Tech or GED classes,” defendant’s father testified that he went to trade school. In any event, all the evidence suggested that defendant began his automotive and mechanical career immediately after quitting his formal education. Before his arrest, defendant maintained steady employment as an auto mechanic and had previously been employed by one of his victims, Victor Rossi, and by the husband of another victim, Joan Brock.
The UCSR estimates defendant’s I.Q. in the medium range (between 70 and 100). Dr. Milton Rhea testified at the penalty phase that the results of a Minnesota Mul-tiphasic Personality Inventory (“MMPI”) suggested that defendant suffered from “schizophrenia, chronic paranoid type” and/or a “schizoaffective disorder.” Dr. Ronald Goebel diagnosed defendant with a brain abnormality resulting in deficits in abstract reasoning.
Defendant’s criminal history before the instant offense was minimal. As noted above, he was apparently adjudicated delinquent of simple arson as a juvenile in 1976. He also has a juvenile arrest for simple battery and an adult arrest for criminal mischief, but both charges were dismissed. The only other offenses present on his S9aduIt record are those for traffic violations. At the time of the instant conviction, four other first-degree murder cases were pending against defendant. Since that time, a jury convicted defendant and sentenced him to death for the murder of Joan Brock. That case is pending on appeal in this Court. In addition, defendant pled guilty to second-degree murder for the killing of Barbara Bourgeois and to two counts of first-degree murder for the killings of Sam and Louella Arcuri. On these three counts, defendant received sentences of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.
Defendant denied any history of alcohol or substance abuse. While there existed no evidence of any chemical dependency, the state’s investigation of the murders suggested that at the very least, defendant attempted to launder the proceeds from the robberies at local casinos. The UCSR states flatly that defendant committed the crime to “to feed [his] gambling habit.”
Defendant declined to give a statement to the officer conducting the CSI, claiming that he had given his attorney a “statement in writing and wanted that statement to stand.” For his part, defendant’s trial attorney stated that “[a]ny information that I may provide in the capital sentencing report could possibly be used by prosecutors against my client in the next capital case.”
Passion, Prejudice or Other Arbitrary Factors.
The record reveals no indicia of passion, prejudice or arbitrariness. Race was not a factor in the proceedings. Defendant and the victim were both Caucasian. Due to the extensive publicity, the court moved the trial to Terrebonne Parish. Defendant’s claims that the court should have granted his second and third motions for a change of venue as a result of publicity concerning another capital case in Terrebonne Parish have been discussed in the appendix and do not warrant relief.
1 ^Aggravating Circumstances
The state presented constitutionally sufficient evidence to demonstrate that the victim was over the age of 65 and that at the time of the commission of the offense, the offender was engaged in the perpetration of an aggravated burglary.
Proportionality
Although the federal Constitution does not require proportionality review, Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), comparative proportionality review remains a relevant consideration in determining the issue of excessiveness in Louisiana. State v. Burrell, 561 So.2d 692, 710 (La.1990); State v. Wille, 559 So.2d 1321 (La.1990); State v. Thompson, 516 So.2d 349 (La.1987). This Court, however, has set aside only one death penalty as disproportionately excessive under the posN1976 statutes, finding in that one case, inter alia, a sufficiently “large number of persuasive mitigating factors.” State v. Sonnier, 380 So.2d 1, 9 (La.1979); see also State v. Weiland, 505 So.2d 702, 707-10 (La.1987) (in case reversed on other grounds, dictum suggesting that death penalty disproportionate).
This Court reviews death sentences to determine whether the sentence is disproportionate to the penalty imposed in other cases, considering both the offense and the offender. If the jury’s recommendation of death is inconsistent with sentences imposed in similar cases in the same jurisdiction, an inference of arbitrariness arises. Sonnier, 380 So.2d at 7.
The state’s Capital Sentence Review Memorandum reveals that since 1976, grand juries in Assumption Parish, Ascension Parish, and St. James Parish, the three parishes that make up the 23rd Judicial District Court, have returned indictments charging 62 individuals with first-degree murder, including the current case. Of these 62, the state’s sentencing memorandum advises that 34 of the cases originated in Ascension Parish and that a jury has returned a verdict of death in only one other case.
wThe state reports that on March 10, 1999, Shon Miller shot and killed his mother-in-law, forced two of his friends to drive him to a nearby church, then ordered one to go inside and get his wife. The friend got to the steps of the church and collapsed, at which time the defendant allowed his other companion to render aid. The pair entered the church and called 911. The defendant soon followed, shot twice into the church ceiling and shouted to the praying congregation, “Nobody move!” The defendant walked straight to his wife and shot the man sitting next to her once in the head, killing him. The defendant’s two-year-old son called out happily to his father, and the defendant shot and killed him as well. Finally, the defendant unloaded his pistol into his wife, killing her. An Ascension Parish jury found Miller guilty of first-degree murder and recommended a sentence of death. Miller’s appeal is pending in this Court under docket number 05-KA-1826.
Furthermore, two of the 17 Assumption Parish first degree murder indictments have resulted in death sentences. In the cases of James Dunn and co-defendant Anthony D. Scott, both men entered the Iberville bank in Napoleonville, brandished guns, forced two tellers into a side office and shot them several times in the head and upper body. The two men and their accomplice Kendall Breaux, fled the bank with more than $16,000. Police apprehended the men after they ran a nearby roadblock and their vehicle was hit by a train. Breaux pled guilty to two counts of first-degree murder, and the court imposed consecutive life sentences in accord with the plea agreement. Dunn and Scott were both convicted of first-degree murder, and the trial court sentenced both men to death pursuant to the recommendations of their respective juries. Dunn appealed, and this Court remanded the matter for additional proceedings in light of Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). State v. Dunn, 01-1635 (La.11/1/02), 831 So.2d 862. This Court affirmed Scott’s conviction and also remanded the case to the trial court to determine whether Scott is mentally retarded and thus ineligible for the death penalty. State v. Scott, 04-1312 (La.1/19/06), 921 So.2d 904.
^Finally, of the 11 capital cases originating in St. James Parish, one resulted in a death sentence. Glynn Juniors was convicted of first degree murder on June 22, 2000. Evidence demonstrated Juniors and his co-defendant, Ronald Williams, drove to an office building in Convent to commit an armed robbery. Juniors entered the building, robbed the business, and shot the two employees. Williams acted as lookout and drove the getaway car. When Juniors exited with the cash, he told Williams that he put a bullet in both of the victims’ heads. One victim died, but the other survived. This Court affirmed the conviction and sentence. State v. Juniors, supra.
Furthermore a state-wide review reveals that juries often return the death penalty in first-degree murder cases which involve the killing of elderly victims during the course of an aggravated burglary. See State v. Howard, 98-0064 (La.2/23/99), 751 So.2d 783 (defendant and several others savagely beat and stabbed 82-year-old female victim in her home); State v. Robertson, supra, 712 So.2d 8 (defendant savagely stabbed an elderly couple to death during robbery in their home; victims were 76 and 71); State v. Tart, 92-0772 (La.2/9/96), 672 So.2d 116 (La.1996) (defendant bound and repeatedly stabbed elderly couple to death during robbery in their home; victims were 70 and 66); State v. Burrell, supra (defendant shot couple, age 65 and 56, in their home during an armed robbery); State v. Wingo, 457 So.2d 1159 (La.1984); State v. Glass, 455 So.2d 659 (La.1984) (same; co-defendant of Wingo); State v. Celestine, 443 So.2d 1091 (La.1983) (defendant strangled an 81-year-old woman in her home during an aggravated rape); State v. Narcisse, 426 So.2d 118 (La.1983) (defendant repeatedly stabbed a 74-year-old woman during an armed robbery in her home).
Compared to these cases, even in the absence of the evidence demonstrating that defendant committed five unrelated murders, it cannot be said that the death sentence in this case is disproportionate.
DECREE
For the reasons assigned herein, the defendant’s conviction and death sentence are affirmed. In the event this judgment becomes final on direct review when either: lfis(l) the defendant fails to petition timely the United States Supreme Court for certiorari; or (2) that Court denies his petition for certiorari; and either (a) the defendant, having filed for and been denied certiorari, fails to petition the United States Supreme Court timely, under its prevailing rules, for rehearing of denial of certiorari; or (b) that Court denies his petition for rehearing, the trial judge shall, upon receiving notice from this Court under La.Code Crim. Proc. art. 923 of finality of direct appeal, and before signing the warrant of execution, as provided by La. R.S. 15:567(B), immediately notify the Louisiana Indigent Defense Assistance Board and provide the Board with reasonable time in which: (1) to enroll counsel to represent the defendant in any State post-conviction proceedings, if appropriate, pursuant to its authority under La. R.S. 15:149.1; and (2) to litigate expeditiously the claims raised in that original application, if filed in the state courts.
AFFIRMED.
CALOGERO, C.J., dissents for reasons assigned by KIMBALL, J.
KIMBALL, J., dissents and assigns reasons.
Included in this investigation were the following home-invasion crimes: the October 27, 1996 murder of Victor Rossi in Ascension Parish; the May 9, 1997 murders of Mr. and Mrs. Sam Arcuri in St. John the Baptist Parish; the May 14, 1997 murder of Joan Brock in St. John the Baptist Parish; the May 18, 1997 murder of Barbara Bourgeois in St. James Parish; and the July 6, 1997 armed robbery and attempted murder of L.M. and J.M. in Ascension Parish.
In its appeal to the public, the task force stated that the suspect may have "purchase[d] a vehicle or other items which would normally not be affordable for this person, or [there might exist] some other indication of a recent influx of money.”
The jury heard defendant’s detailed confessions to the murders of Mr. Rossi, Mrs. Brock, Mr. and Mrs. Acuri, and Mrs. Bourgeois, and to the attempted murders of Mr. and Mrs. M.
After discussing his unauthorized entry through the roof of the victim’s residence during his interrogation by Detective Toney, defendant described the confrontation that led to his killing of Mrs. Philippe as follows:
In addition to the videotaped confession, the jury heard testimony from police officers that the details of the crime scene matched defendant's confession, that defendant was identified from the composite sketch released subsequent to the July 6, 1997 attempted murder and armed robbery of the M. couple, that they found a bent pair of needle-nosed pliers in defendant’s auto shop matching those defendant said he used to cut the phone wires at several of the residences, and that several of the details confessed to were not public knowledge, such as the location of the attic ladder, the location of the safe in the closet, the location of the purse and its contents, and the location of victim’s body. Further, during the videotaped confession, the jury heard evidence of the significant amount of money defendant was gambling at the casinos and the significant amount of money defendant was spending on vehicles and other items, all of which was way out of line with defendant’s actual income.
The videotaped confession revealed that both Victor Rossi and Joan Brock's husband were his previous employers, that Barbara Bourgeois lived across the street from his father, that he purchased auto parts from Lillian Phillipe’s husband, and that the Acuris lived across the street from Airline Motors where his girlfriend worked for some time.
In relation to Victor Rossi, defendant stated that Rossi failed to pay him for some fuel injection equipment and failed to pay him for work he had performed; in relation to Joan Brock, defendant stated that Doug Brock took advantage of him by not assisting him in building some street rods; in relation to the M. couple, defendant stated that because they had a "big old fancy house,” he thought they would have cash inside.
All assignments of error not discussed in this Opinion are discussed in an Unpublished Appendix to this Opinion.
Over defense objection, the trial court excised those portions of the interrogation which involved any references to the administration of the polygraph examination. Exclusion of this evidence is discussed infra.
This Court considers the entire record when passing on the correctness of a suppression ruling. State v. Green, 94-0887, p. 11 (La.5/22/95), 655 So.2d 272, 280; State v. Brooks, 92-3331, p. 10 (La.1/17/95), 648 So.2d 366, 372; State v. Marlin, 595 So.2d 592, 596 (La.1992); State v. Seward, 509 So.2d 413, 416, n. 8 (La.1987).
After discussing defendant's education, family, work history, recent purchases and casino winnings, Officers Mike Toney and Todd Hymel engaged defendant in the following exchange: MT: Do you have any idea why we’re here? DB: Un-un. TH: Do you think we traveled this distance to speak to you about casino winnings, do — do you think legitimately that’s why we’re here? DB: Well basically you wanted to know where I got all my money from you know and that’s why I gave him the papers [documenting money won at the casino]. TH: We — we went ah we both — both of us took a good number of notes and we been speaking to you for about a hour and a half now. DB: Um-huh. TH: Every single question that we asked you we knew the answer to and we do that for one reason, to see if you're going to lie to us. DB: Right. TH: There — there is [sic] a few points that you did and there is [sic] a few things that you did with hold [sic] from us. Ah we’re not going to ask you a question that we don’t know the answer to. DB: Yeah. TH: We been doing this for too long and we’re good at what we do. DB: Right. TH: And we're not going to come here half steppin and I’m not going to travel five hours and come speak to you without having all my ducks in a row. DB: Right. TH: Okay. You have absolutely no idea why we’re here to speak to me [sic], is that what you’re — you’re telling us? DB: Well you want to know where I got my money from. TH: Have you ever been questioned or spoken to by any other Sheriff's Office in the past for any other crimes that had taken place? DB: Ah I was called in on ah that deal about ah Rossi. TH: The Rossi homicide? DB: Yeah.
It is unclear at exactly what point defendant’s presence at the sheriffs substation turned from a voluntary interview into a custodial interrogation. Although defendant agreed to take a polygraph examination concerning his participation in the homicides after about three hours of questioning, he later expressed reluctance to submit to the test and engaged in the following exchange with Detectives Hymel and Toney: DB: Now, like I said, if I refuse [the polygraph], then what happens? TH: Daniel if you refuse it we got some serious talking we need to do okay. MT: We’U sit down and talk to you some more. TH: I'm no — I'm not gonna bullshit you, we all — we all big boys in this room okay. Um but I think you should save that decision until uh until he [the polygraph examiner] gets here and he can explain the test to you and it's procedures, okay. Given the officers' statements at this point in the interview suggesting that they would continue to interrogate defendant even if he refused the polygraph examination, arguably, at least, defendant's detention was no longer voluntary. Nonetheless, defendant ultimately agreed to the polygraph, waiving his Miranda rights immediately beforehand. Moreover, even after defendant had taken the polygraph and had been interrogated forcefully for approximately two hours by FBI Agent David Sparks, he asked the officer, "Want to charge me for this?” Given this latter inquiry several hours into the interview, tacitly acknowledging that he had not been charged with a crime, it appears unclear whether defendant believed he was free to leave.
The Fifth Circuit conducted a thorough examination of these allegations (and that defendant was denied food during the interrogation) in State v. Blank, 01-0564 (La.App. 5 Cir. 11/27/01), 804 So.2d 132, in which defendant challenged the admissibility of the instant confession following his second degree murder conviction for the killing of Barbara Bourgeois. Reviewing the evidence as it related to defendant’s claims concerning hunger, lack of sleep, nicotine deprivation, and the state's references to his deceased mother, the Fifth Circuit found the following: Food The record indicates that Blank did not ask for any food during the entire interview on November 13, 1997; he also did not indicate that he was hungry. In the transcript of the hearing on the motion to suppress before the Twenty-Third Judicial District Court, Detective Hymel testified that during the November 13 interview, Blank did not ask for any food, and had he requested food, he would have received it. The detectives offered Blank something to drink on several occasions. Detective Hy-mel testified that he reviewed the taped interview several times and stated that Blank was provided five drinks — four Cokes and one cup of water. The twelve and one-half hour video of the interview is the best evidence to determine whether the confession was induced from lack of food. Upon review of the tapes, there appears no indication that Blank’s confession resulted from lack of food. There was no express statement or mention of food by either the detectives or Blank. The detectives did not promise to give Blank food if he confessed. Further, the detectives did not eat in front of him, and Detective Toney stated that neither he nor Detective Hymel ate anything during the time frame of the interview. In light of the fact that the detectives provided Blank with drinks, bathroom breaks, and adjusted the temperature in the interview room, there is nothing in the record to suggest that Blank would have been denied food upon request. In light of the totality of the circumstances, there appears to be no coercion by the detectives to induce a confession from lack of food. Cigarettes Blank tried to smoke a cigarette in the interview room; however, Detective Hymel informed him that he could not smoke in the building. Detective Hymel testified that at approximately 3:45 p.m., which was two hours and forty-five minutes into the interview, Blank lit up a cigarette for fifteen seconds while he was not in the room. When Detective Hymel returned to the interview room, he informed Blank that he could not smoke in the building and directed him to put out the cigarette, explaining that there was a "no smoking” sign posted on the door. Detective Hymel also stated that shortly thereafter, at around 4:10 p.m., right before the polygraph test was to be administered, Blank had a 12-minute break where he went to the bathroom. Detective Hymel testified that Blank smoked a cigarette while in the bathroom. Detective Hy-mel stated that after Blank smoked in the bathroom, the detectives continued to let him smoke. Detective Hymel also stated that Blank smoked a cigarette nine times on camera and one time off camera, in the bathroom. Detective Mike Toney, the other officer present in the interview room, also testified that Blank smoked a cigarette prior to confessing. A review of the record indicates that Blank did smoke prior to admitting some involvement in the crimes. Both Detective Hymel and Toney testified that at first, Blank was not allowed to smoke because of the "no smoking” sign. Based on the record and their testimony, it appears that the initial denial of the Blank's request to smoke was not because of police coercion but due to the no smoking regulation at the Texas courthouse. However, Detective Hy-mel stated that once Blank smoked in the bathroom, they allowed him to smoke in the interview room. Sleep Within the first three hours of the interview, Blank indicated that he was sleepy when he stated, "Sitting here ain’t doing nothing, getting sleepy.” Before the polygraph test was administered, Blank stated to David Sparks, the polygraph examiner, that he went to bed the previous night between 12:00 a.m. and 1:30 a.m. and woke up the next morning around 8:10 a.m. Blank also stated that he was up late working on a transmission. A review of the tapes also indicates that Blank put his head on the table when the officers were out of the room. The issue is whether Blank was deprived of sleep and, if so, whether this amounted to police misconduct which induced an involuntary confession. Based on the record, it appears that Blank did not request any sleep, only that he was tired from not doing anything and from working late on a transmission. The detectives did not promise Blank that they would allow him to sleep if he confessed. The record indicates that Blank had seven to eight hours of sleep the night before. Also, Blank was up the previous night to 1:00 a.m. which is around the time the interview ended in this case. In light of the foregoing, it appears that the detectives did not deprive Blank of sleep as he claims. Detective Hymel testified that Blank was allowed 14 breaks throughout the 12-hour interrogation. Blank was appraised of his rights, including the right to remain silent and that he could stop the questioning at anytime. In this case, Blank did not invoke the right to remain silent, and at no point did he state that he wanted to stop the interview because he wanted sleep. Mention of deceased mother Blank alleges that the detectives coerced him into confessing by the repeated mention of his deceased mother. During the interview, the detectives explained to Blank that his deceased mother would want him to take responsibility and admit to the crimes. At that point, Blank broke down and began to cry. Thereafter, he admitted to his involvement in the crimes. A confession is not rendered inadmissible because officers exhort or adjure an accused to tell the truth, provided the exhortation is not accompanied by an inducement in the nature of a threat or which implies a promise of reward. In this case, the repeated references to Blank's deceased mother and the exhortation to tell the truth and take responsibility for his actions did not make the confession inadmissible. The detectives did not threaten or promise Blank anything in reference to his mother in obtaining the confession. State v. Blank, 01-0564, pp. 7-10, 804 So.2d 132, 137-39 (footnotes omitted). The court of appeal accurately described the circumstances of the interrogation as depicted in the videotape and reached the correct result.
For instance, FBI Agent Sparks engaged in the following exchange with defendant following the administration of the polygraph examination: DS: You bet it is okay. But something occurred and you decided you wanted more in your life, you thought you could take the easy way, thought you could go get some money from somebody. DB: No. DS: And something happened. DB: Un-un. DS: And when you went into there [Joan Brock’s residence] — when you went in there, oh don’t shake your head, I — I you know don’t deny it okay-okay. The investigation — this investigation has been going on for six months son okay, this didn’t happen yesterday, we just don’t come down here out of the middle of no where [sic] okay, we know what’s going on. What we're trying to figure out is why, because why this occurred okay. DB: I don’t know. DS: I want you to tell me — Daniel don’t sit there and shake your head, now come on let’s be honest with each other okay, let’s be honest with each other [sic]. It's time to have a meeting of the minds okay, its [sic] time for you to sit down and accept what you've done — accept what you’ve done and let it go okay. DB: How can I accept something I ain’t done. DS: Yeah — yeah but you have, yes you did okay. And I — and I — when you — when you say you can’t accept something you haven't done that's good okay, because that means in reality you [sic] going I can't accept I didn't do it because I did do okay, that’s what you're trying to tell me alright, in your own — in your own street wise [sic] way that’s what you [sic] trying to tell me alright. Something happened, something occurred in your life 16 months — 18 months ago, something made you snap all the way to here. I don’t think it was drugs, I think it was something you said I have to take care of my family I have to take care of my family now, the time is come for me to take care of my family okay. You decided that you would take the easy way out, you didn’t plan on hurting anybody, did you, no.
In Seibert, the defendant was arrested for her participation in an arson-murder. Upon her arrest, officers questioned her without Miranda warnings for 30-40 minutes, gave her a 20-minute cigarette and coffee break, and then read Miranda warnings, after which officers interrogated her about her pre-Mi-randa statements. The officer admitted that he had made a "conscious decision” to withhold Miranda warnings initially, using an interrogation technique he had been taught. In these circumstances, the Court held that the purpose of the interrogation technique was to render Miranda ineffective by waiting to give the warnings until a confession was obtained and that it was unreasonable to treat the two sessions of “integrated and proximately conducted questioning” as independent interrogations. The Court thereby distinguished and limited its earlier decision in Oregon v. Elstad, supra, which held that an initial statement taken in violation of Miranda did not taint a subsequent statement taken in full compliance with Miranda. In his dissent, Brennan's bitter denunciation of the majority's "marble palace” psychology and his prediction that the majority invited police to employ a "question first” technique to break down a suspect’s initial reluctance to give a statement, Elstad, 470 U.S. at 328, 332, 105 S.Ct. at 1303-1305 (Brennan, J., dissenting), anticipated the decision in Seibert.
Despite defendant's appellate claim about the impossibility of entry into Mrs. Philippe's residence in the manner described in his confession, forensic scientist George Schiro testified only that the hole in the roof was fairly narrow and that it would have been "very difficult” for someone to have made entry through it. Schiro also testified that Schiro could not fit through it with a motorcycle helmet on. Notably, however, at 5'2?2D and 120 pounds, defendant would have likely had an easier time fitting through the hole than would an average-sized male intruder. Further, the jury also heard testimony that the police officers found a fresh blade of grass in the attic, indicating that someone had recently entered the attic from the outdoors.
Regarding the motion to suppress, defendant also claims that the court should have admitted a booklet prepared by Dr. Mark Vigen offered to provide an analysis "about how to conceptualize [the confession] and how to understand it from a psychological point of view" and considered testimony provided by the witness on the issue of volun-tariness. The court excluded the proffered booklet on hearsay grounds and ultimately discounted Vigen’s testimony in its entirety, noting that it did not satisfy the standards set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) for the admissibility of expert scientific testimony. Given that the witness’s prepared booklet was not subject to cross-examination, defendant fails to show that the court erred when it excluded it on hearsay grounds. La.C.E. art. 801; La.C.E. art. 802. Moreover, given that Dr. Vigen himself could not cite to a "single scientific publication” to support his conclusions that the methods employed and questions posed by the officers were likely to produce a coerced or otherwise involuntaiy confession, he cannot show that the court erred when it discounted the testimony provided by the expert to that effect. This claim lacks merit.
The “substantial impairment” standard applies to reverse-Witherspoon challenges. In Morgan v. Illinois, 504 U.S. 719, 738-39, 112 S.Ct. 2222, 2234-35, 119 L.Ed.2d 492 (1992), the Supreme Court held that venire members who would automatically vote for the death penalty must be excluded for cause. The Court reasoned that any prospective juror automatically voting for death would fail to consider the evidence of aggravating and mitigating circumstances, thus violating the impartiality requirement of the Due Process Clause. Id.., 112 S.Ct. at 2229. The Morgan Court adopted the Witt standard for determining if a pro-death juror should be excused for cause.
The rule is different at the federal level. See United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000) (exhaustion of peremptory challenges does not trigger automatic presumption of prejudice arising from district court’s erroneous denial of a cause challenge). At the federal level, a defendant may choose whether to exercise a peremptory challenge to cure the trial court’s error, or to seat the juror and then raise the error on appeal if convicted. Martinez-Salazar, 528 U.S. at 315, 120 S.Ct. at 781.
Justice Lemmon, writing for a majority of this Court in State v. Miller, 99-0192, p. 8 (La.9/6/00), 776 So.2d 396, summarized the import of Divers, Maxie, Robertson, and Ross, as follows: In each of these cases, while the prospective jurors stated a willingness, in the abstract, to consider a life sentence, defense counsel established the jurors’ unwillingness or inability, because of the aggravating factors in the particular case, to follow the law requiring consideration of mitigating circumstances before deciding how to vote on the sentence. In effect, the jurors in those cases stated that they would vote for death because of the aggravating circumstances in the particular case and regardless of any mitigating evidence that may be presented. Thus, the jurors’ views on capital punishment in the particular case prevented or substantially impaired them from following the law under the Louisiana's capital sentencing scheme. Miller, 99-0912 at 12, 776 So.2d at 404 (emphasis supplied).
In support of his claim that introduction of the evidence was presented merely to prove his bad character, defendant points to a portion of the state's closing argument in which the prosecutor stated: And the reason we showed you the other crimes is because he did it over and over again. And it was always people confronting him, always getting caught while he was burglarizing, but every time he got caught he always had the upper hand.
Although defendant does not challenge the admission of this evidence at the guilt phase on the grounds that these crimes were not proven by clear and convincing evidence, we note that in April of 2000, a jury convicted defendant and condemned him to die for the murder of Joan Brock. In addition, defendant was sentenced to life in prison in February 2001 after pleading guilty to killing Barbara Bourgeois. Defendant also pled guilty to the murders of Sam and Louella Arcuri and was sentenced to two life terms. .On July 19, 1999, the state filed its formal notice of its intent to introduce evidence of the following crimes: 1. The first degree murder of Victor J. Rossi; 2. The armed robbery of Victor J. Rossi; 3. The theft of an automobile belonging to Victor J. Rossi; 4. The attempted first degree murder of L.M. and J.M.; 5. The armed robbery of J.M. and L.M.; 6. The aggravated burglary of J.M. and L.M.; 7. The theft of an automobile belonging to J.M. and L.M.; 8. The first degree murder of Barbara Bourgeois; 9. The aggravated burglary of Barbara Bourgeois; 10. The first degree murder of Mr. and Mrs. Sam Arcuri; and 11. The first degree murder of Mrs. Joan Brock.
Notably over a month before the state filed its formal Prieur notice, defense counsel acknowledged that the state intended to introduce evidence of the other murders at the guilt phase at a hearing on defendant's motion for a continuance, held on June 10, 1999.
In Martin, a forgery prosecution, this Court held that evidence that the defendant threatened the codefendant’s life and unlawfully distributed drugs to her should not have been admitted to demonstrate that he aided or abetted in the forgery or counseled or procured codefendant to commit the crime, because knowledge and intent to prove the defendant was a principal to the offense were fully established by other, uncontradicted evidence.
Under Chapman, an appellate court must decide “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction,” and "the court must be able to declare a belief that [the error] was harmless beyond a reasonable doubt.” Id., 386 U.S. at 24, 87 S.Ct. at 828, 17 L.Ed.2d at 710-11. The reviewing court must therefore be able to say that the jury's verdict in the particular case was surely unattributable to the error. Sullivan v. Louisiana, supra; State v. Sanders, 93-0001, p. 25 (La. 11/30/94); 648 So.2d 1272, 1291.
In his final claim relating to admission of the other crimes evidence, defendant argues that the court read a misleading limiting instruction when it charged the jury as follows: ... Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. You are advised of the limited purpose for which the evidence was received, (emphasis added). Defendant maintains that proof of the other murders was not admissible to show motive, opportunity, preparation, plan, knowledge or identity and hence that jurors may have considered the evidence for a prohibited or irrelevant purpose. As an initial matter, defendant did not object to the charge on the basis that it would allow jurors to consider the evidence for an impermissible purpose and thus waived the claim. La.C.Cr.P. art. 841; see State v. Sims, 426 So.2d 148, 155 (La.1983) (new basis for an objection may not be urged for the first time on appeal); State v. Stoltz, 358 So.2d 1249, 1250 (La.1978) (same); State v. Ferguson, 358 So.2d 1214, 1220 (La.1978) (same). In any event, arguably, the court should have instructed the jury that it could only consider the other crimes evidence to prove intent, lack of accident or mistake. See Louisiana Judges’ Criminal Bench Book § 5.04 (suggesting that the court instruct the jury that it may consider the crimes evidence for the "sole purpose” of whether it tends to show "purpose for which the court has admitted the evidence, e.g., to show guilty knowledge, absence of mistake or accident, intent, system, motive or identity.”). However, in the state’s closing, the prosecutor argued forcefully that the "limited purpose” of the crimes evidence was "to show either the intent of the [djefendant, absence of a mistake on the part of the [defendant, or absence of an accident on the part of the [defendant." Given the entirely speculative nature of the claim concerning jurors possibly misinterpreting the instruction, this claim lacks merit.
Ultimately, the state withdrew its intent to present evidence that defendant committed a felony theft and aggravated burglary upon Wayne Melancon.
Officers Hymel, Toney and Breaux also participated in the interrogation.
In particular, defendant points to the following excerpts from Sparks's interrogation: ... I been a law enforcement officer for nearly twenty years okay. I've got a lot of education, I’m a smart — I’m a smart individual or I — I guess I think I'm smart, okay, I’m well read, okay got a lot of education!.] [W]ho do you think their [sic] gonna believe[?] I mean where does it point at, you understand what I’m saying? ... [Y]ou know I'm not stupid, the officers you talked to this afternoon aren’t stupid, okay give us the benefit of the doubt. We’re not doing this because were stupid, okay. We're doing this because we’ve been trained for a job, we know what we’re doing. The whole point being, okay. You go in front of a jury right now, present your side of the story, we present our side of the story, we got problems bubba, okay. Now on the other hand, on the other hand, we go to the jury and we say we don’t have to present a story, Daniel told us what happened, whatever that story is you understand? And then we go from there. Okay we don’t have the problems that we’re gonna have okay. You’re sitting over there in your chair being silent, ain't saying nothing, got your hand crossed, looking mad, instead we go in front of the jury, front of the judge and we say this is what happened. Here’s Daniel what Daniel said about this. Now you got to be honest with me that sounds a little bit better then [sic] sitting there doesn't it, like a lump, okay. Yeah, yes it does, okay. Something occurred, something occurred in your life, I don’t know when, I don’t know how it happened or why it happened or whatever. Okay you decided to take this to the next step, you didn’t plan on hurting anybody, you didn't want to hurt anybody but you did okay. The only way — the only way to get this clarified is to tell us why this happened, why did you do this?
In a somewhat exasperated response to Agent Sparks's insistence that defendant had committed the murder of Joan Brock, he told the officer: Want to charge me for this, cause I don't know what — look I'm tired, I been up, since 1:30 something this morning, ya'll drug me down here, ya’ll been at it, I don’t even know what time it is. Uh I'm thirsty, I got to use the bathroom, and you know all of this don’t make no sense.
Defendant asked Detectives Hymel and To-ney about whether any consequences would result from his refusal to submit to the polygraph examination: DB: What choice do I have? TH: Well it — it is your choice I mean. MT: It's your choice. DB: If I refuse then what? TH: That's your prerogative I mean, this is something that we asked you before if you're responsible for committing these homicides and you stated no uh. DB: I mean if I refuse it then what ya’U gonna do to me? TH: Well I got to be honest with you if looking from an invesinvestigative stand point [sic], it doesn't look to [sic] good but I mean that's only my opinion, and I mean that — that's. DB: Well what I’m saying if I — if I — if I refuse the polygraph test what you gonna do, you gonna arrest me? TH: You're not under arrest.
Sparks described the state's evidence of the Brock murder to defendant as follows: Okay the back yard of the victim's residence is surrounded by a six foot wooden privacy fence. In other words you couldn't see back there, the big wooden fence, six foot tall you and I couldn't even see over it, I’m not six foot either, well we couldn't even see over there. So who ever did this had to jump over the fence to get into the back yard okay. The person that did this gained access to the victim’s residence through a set of French doors, located in — in the back of the victim’s residence that were left unlocked by the victim. It says a burglary or robbery appeared to be the motive for this incident. Now taking [sic] out of that house was a safe, okay. It was approximately 28 by 19 by 22. It weighed two hundred and forty-six pounds. It was taken out of a — a walk in closet located in the victim’s bedroom. This safe contained all kind [sic] of money, jewelry and other things. The residence uh in other words, nothing else taken from the residence the house, the residence was not rumished [sic] through, nothing else was known to be stolen out of it, the only [thing] that was taken out of here was the safe. It says that the person that did this dragged the safe into the garage area of the residence, loaded the victim's car and it’s described as a 1991 Nissan Maxima and fled the scene. The victim’s vehicle was later recovered abandoned and unlocked with keys in the ignition in the parking lot of a near by Holiday Inn Motel near [interstate 10 and [interstate 55 in LaPlace, Louisiana. The safe was not recovered, okay. You understand all that. So what this person did — what this person did jumped the fence, attacked this woman, went into the residence, took the safe out of her bedroom, dragged it in the garage, put it into a 1991 Nissan Maxi-ma, drove down the street to Interstate 10 and Interstate 55, next to a Holiday Inn, took the safe out and disappeared. And you had absolutely nothing to do with that?
In Haynes, defense counsel objected to the prosecutor reading only excerpts of the defendant’s incriminating statement and requested that it be read in its entirety. The trial court overruled the objection, effectively denying the defense the opportunity for the exculpatory parts to go before the jury as permitted under R.S. 15:450. Haynes, 291 So.2d at 772. In addition, the state's objection cut off any attempt by the defendant to explain the excerpts carefully culled by the prosecution from his statement. Id. Under those circumstances, this Court found that the state's deliberate attempts to use only portions, while denying the defendant the opportunity to introduce exculpatory portions of the statement or to explain any apparent inconsistencies with his trial testimony constituted a violation of R.S. 15:450 and constituted reversible error. Id. 291 So.2d at 773.
In State v. Snedecor, this Court reiterated its holding in Haynes, supra, regarding the conflict between the rules precluding the admission of other crimes evidence and defendant's right to admit an inculpatory statement in its entirety as follows: [A] party defendant is entitled to insist upon introduction of the entirety of a statement sought to be used against him, although of course he may waive the benefits of the protective statute. Thus, in keeping with the restrictions imposed in Sections 445 and 446, the trial court allowed introduction of only that portion of the statement dealing with the charged crime. Defendant, of course, could have required that the whole statement be introduced. This, however, is his choice to malee. If he decides that the evidence of other crimes would outweigh the possible exculpatory value, then he may waive his right to have the whole statement introduced. The third alternative, that of keeping the whole statement out, is not available to defendant, unless, of course, the confession itself is not admissible. (Emphasis added).
In the alternative, defense counsel suggested at trial that the videotape could be edited to delete all references to the polygraph examination and pictures of the polygraph machine, and that the jury would see only an FBI agent questioning defendant. The videotaped version of the Spark’s interview and polygraph is not available in the record, so we have no view as to whether or not the suggestion of editing the polygraph machine out of the videotape was practical. However, as explained infra in the harmless error analysis, it is clear from the verbatim transcript of the Spark's interview that the vast majority of the interview, 25 pages of the 35-page transcript, consisted of Spark’s explaining the polygraph process, going over the exact questions he would ask, and administering the polygraph. Thus, if defense counsel's suggestion was adopted, the jury would have only been left with 10 pages of transcript to consider, and even those pages contained references to the polygraph which would have to be deleted. Thus, it is arguable whether the trial court erred in failing to let the jury consider the Sparks’ interview with all references to the polygraph and images of the polygraph machine edited out.
In addition to the portions of the Sparks’ interview quoted at page 17, n. 14, page 47, n. 30, and page 48, n. 33, the only other even marginally aggressive things Sparks said were as follows: DS: All right now then, based upon the investigation that’s conducted so far okay. Indications are you’re involved in this thing. Now I don't know what you’re involvement is looks like it’s direct involvement thought. And I don’t — now hold on now, I want you to listen to me okay. I — I don’t why based upon everything that’s occurred up to this time, how a person like yourself would get involved in something like this but you have. Okay there’s no two ifs and buts chances or whatever about it okay. Now it the time for you to decide where you gonna go with this okey, you understand that? DS: ... But I have no doubt based upon our investigation that is conducted and this investigation didn’t start, remember I told you about the guy that — that comes in, he didn’t plan this today, he planned this yesterday, it’s the same way with us. WE been doing this a long time, okay. We've been doing this investigation a long time, okay. Coup De Gras was taking that polygraph test okay. It’s indicated to me okay, based upon what — what’s occurred, what happened and everything else okay that you’re involved in this, I don’t know why. I can't explain it, I’d sit here — I’d no — no I want you to listen tome. I’ll sit here and try to reason with you, I told you to be truthful with me, we won’t have any problems. DS: You just saying that. Well you explain to me then — you explain to me why we would spend all this time and all this effort in going after somebody okay, we're not stupid and we’re not dumb, we're not very good looking either okay. How can you— how can you sit there and look at me and tell me when you go home okay that you're child is not going to be upset with you, that your family is not going to be upset with you. The only way that you can come to a meeting of the mind and start feeling better — a little bit better about yourself, is get this off you mind okay. You family is still going to love you no matter what, they're going to still low you okay. I don’t care what you say, they're still going to care for your, they still going to have concerns for you okay. As a matter of fact — as a matter of fact they'll probably going to be a little proud of you, at least you stood up and acted like a man okay. DB: un-un. DS: Instead of swarming down some little rat hole and trying to hide from it you faced it like a man. DS: They are going to be disappointed in you okay, they’re going to be hurt, they going to loose their father okay. But some day you'll be able to sit down with them and tell them say listen I did a bad thing, those kind of things happen in life, something happened to me 12-14 months ago I don't know what it was. I decided at that time I wanted to provide a little extra for ya'll, provide a little extra for me, I got scared, things happened, I didn’t plan on this happening, I'm sorry for what I did, I’m going to pay the piper for what I did, but I have got to go on with my life and I want you as my child to understand what I did and what I did was wrong okay. You can't sit there and tell me this is not eating you up a little bit, I know it is okay. DB: No what's bothering me is — is. DS: Okay. DB: It looks like I'm being charged with something I don't know anything about. DS: No. DB: And DS: No — no, hold on a minute, let me — let ask. DB: You know had nothing to do with. DS: I’m — I’m glad you said that okay. DB: Okay. DS: I’m glad you to told me that you think you’re being charged. DB: Well I mean the way — the way — the way. DS: Let me tell you this right now. Have you been charged with anything? DB: No. DS: No, you haven’t been charged with anything. DB: That’s what it — it, you. DS: That’s what it appears to be? DB: From what you’re telling me you know — the way you telling me that ya'll know. DS: Okay, alright. DB: Ya’ll know. DS: Well I want you to sit there and look— look at the facts that have occurred okay, bear with this — bear with us. Okay you've already been told and this has been — this is a joint investigation from 2 to 3 months, you think all those files and everything we have are just empty paper, no their not, their not okay [sic]. What did I tell you about what we do when we profile an individual. We look at an individual that can meet the profile that could of committed these crimes okay. No you were given an opportunity on that polygraph that you said no I'm not that type of person okay. DB: Right. DS: Alright. Now you fit the profile okay, you knew the people, you lived in the area, everything fits, descriptions that have been given so forth it all fits okay. Give you a prof-polygraph. I would be sitting here talking to you if you passed the polygraph. I wouldn't be sitting here talking to you if we had gone through this investigation and you weren't the person that we met — met the profile that we're looking for. Back to what I was telling you okay. Something occurred, something is bothering you okay. The only way we're going to get this is to get the truth out okay.... This type of questioning falls far short of the type of coercion which would render a confession involuntary.
Q. Okay, alright. For the purposes of taping um have you tell me what was your relationship ah with the Brock’s, how did you know them. Um go ahead and — and take if from, I believe you worked for them at some point, if you can tell me approximately when, ah at what point in your life and how long you worked for them? A. I worked for him it was right at a year right at a little over a year and ah it was basically the same thing, we use to go to street rod shows and everything, I did a lot of work for him, ah you know we built a couple of street rods and what not, and basically when it was time to build mine it was nobody never had time to mess with it you know they promise you this, promise you that and don't do nothing. Q. Yeah. A. It was basically the same thing, so more or less ah a win loss situation, just more or less take advantage of you, you know I was — I was out of a job and I was— I was in pretty bad shape, my little brother had back trouble and then he called me to go back to work for him and you know more or less suckered me into everything and then pretty much booted me out after this. Q. You felt you were taken advantage of? A. Pretty much.
The UCSR and CSI both state that defendant has four brothers. However, one of defendant's brothers testified at the penalty phase that he and Daniel were among six sons born to their parents. Defendant’s father also stated that he had eight children.
In his confession, defendant admitted taking an envelope containing $120.00 from Mrs. Philippe's residence. [OPINION BY KIMBALL, Justice, type=dissent] KIMBALL, Justice, dissents. hi agree with the majority’s conclusions that the trial court abused its discretion when it prevented the jury from viewing the interrogation of defendant by Agent Sparks over defendant’s objections and when it prohibited defendant from examining Agent Sparks at trial. I disagree, however, with its determination that these errors were harmless. In my view, it cannot be said beyond a reasonable doubt that the excluded evidence could not have affected the jury’s verdict. Consequently, I would reverse defendant’s conviction and sentence. The record reveals that Agent Sparks’s portion of the interrogation was, in fact, relevant to establishing defendant’s defense theory. The examination by Agent Sparks was not merely incidental or supplemental to the entire 12-hour interrogation. It appears to have been an integral portion of the interview, and defendant’s confessions of the crimes occurred shortly after Agent Sparks’s interrogation. Exclusion of this portion of defendant’s statement did not allow the jury to get a feel for the entire tenor and context of his confession, which was relevant to its determination of the voluntariness and reliability of his words. A reviewing court must find beyond a reasonable doubt that excluded evidence ¡.could not have affected the jury’s verdict for the error to be harmless. State v. Everidge, 96-2647, p. 8 (La.12/2/97), 702 So.2d 680, 685. When an appellate court determines the excluded testimony is crucial to the defense theory, a conclusion of reversible error is well-founded. Id. Considering the totality of the circumstances presented by this case, I cannot say beyond a reasonable doubt that the excluded evidence could not have affected the jury’s verdict. The State largely relied upon defendant’s confession to prove his guilt. Given that the State failed to present any forensic proof connecting defendant to the crime scenes, any evidence tending to undermine the veracity of his confession would certainly have been useful to the defense. The defense attempted to show the coercive nature of the whole interrogation in order to prove defendant’s confession was not trustworthy. It is conceivable that viewing Agent Sparks’s portion of the interrogation, along with his testimony, may have planted reasonable doubt in the minds of the jury. Accordingly, I do not believe the trial court’s errors were harmless.
STATE of Louisiana v. Daniel Joseph BLANK.
No. 10-KA-205.
Court of Appeal of Louisiana, Fifth Circuit.
Jan. 25, 2011.
Thomas F. Daley, District Attorney, Or-enthal J. Jasmin, Assistant District Attorney, Fortieth Judicial District, St. John the Baptist Parish, State of Louisiana, Ed-gard, LA, for PlaintiflyAppellee.
Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKS HOMBERG WICKER.
[OPINION BY MARION F. EDWARDS, Chief Judge. type=majority]
MARION F. EDWARDS, Chief Judge.
12Pefendant/appelIant, Daniel Joseph Blank (“Blank”), was charged by grand jury indictment with the first degree murders of Joan Brock, Luella Arcuri, and Salvador Arcuri in violation of La. R.S. 14:30 A(1). The arrest and charges came after an investigation of several home invasion crimes, including several murders that occurred in the River Parishes in 1997. Officials from St. John the Baptist, Ascension, and St. James Parishes, the city of Gonzales police officers, and agents from the New Orleans FBI joined forces to form a task force for the investigation. The investigation led the task force to Blank, who was living in Onalaska, Texas.
Several members of the task force trav-elled to Texas, where they found Blank at his place of employment. Blank agreed to accompany officers to the Onalaska Courthouse Annex where he was questioned by task force members about his spending and gambling habits and his income. Later the officers [..¡questioned Blank about the home invasions, armed robberies, murders and attempted murders.
Blank was ultimately charged with several crimes, including the first degree murder of Lillian Philippe, for which he was tried, convicted, and sentenced to death. His direct appeal to the Louisiana Supreme Court resulted in an affirmation of that conviction and sentence. Blank also pled guilty to the murders of the Arcuris and Barbara Bourgeois, and he was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on each of those counts.
The matter before this Court in this appeal is the conviction on the guilty plea entered by Blank to the murder of Joan Brock. Blank brings this appeal pursuant to State v. Crosby, which allows a review of the trial court’s denial of Blank’s motion to suppress the confession.
The known facts of this crime are limited due to Blank’s guilty plea. However, Blank admitted to killing Joan Brock during the perpetration of an aggravated burglary at her home on Somerset Drive in LaPlace on May 14,1997.
LAW AND DISCUSSION
Blank argues that the trial court erred by denying his motion to suppress the statements made at the Onalaska, Texas Courthouse during the lengthy interrogation by task force officers. Blank asserts that his statements were not voluntary and should have been suppressed, because no reasonable person would have felt free to terminate the interrogation and leave. Blank further asserts he was incapable of waiving his rights and making a statement because of the emotional distress to which he was subjected during the interrogation.
In support of the motion to suppress in the trial court, Blank made several allegations relating to the interrogation as follows:
1. He asserted that he was unlawfully seized and arrested without probable cause;
2. He was interrogated for about twelve hours without food, drink, or cigarettes or sleep;
3. He believed he would only be free to leave if he confessed;
4. His confession was coerced because police officers told him he would be better off if he confessed, and because they falsified the results of a polygraph test;
5. He was psychologically manipulated into confessing;
6. His mental capacity was such that he did not make a knowing, intelligent, and voluntary waiver of his constitutional rights;
7. His emotional state deprived him of the ability to adequately give a voluntary confession; and,
8. His confession was constitutionally infirm because he did not receive ■ sufficient Miranda warnings.
In a written Judgment with Reasons, the trial court rejected all of the above allegations and denied the motion to suppress the confession.
The State argues that all of the assertions regarding the motion to suppress on review in this appeal have been considered and rejected by either this Court or the Louisiana Supreme Court in prior appeals and are without merit. The State makes a valid point. Blank has attacked the ruling on the motion to suppress in prior appeals. His arguments have been addressed and rejected by either this Court or by the Louisiana Supreme Court in prior appeals of murder convictions resulting from other murders to which Blank confessed during this interrogation.
Blank acknowledges that fact. However, he asserts that two claims relating to the motion to suppress are still viable and should be considered by this Court. He asserts that he was not free to leave the interview and that he was made to Uunderstand that he would be interrogated until he confessed. Blank also contends he was emotionally incapable of giving a valid waiver of his rights and of giving statements.
Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menace, threats, inducement, or promises. A determination of voluntariness is made on a case-by-case basis, depending on the facts and circumstance of each situation. The trial judge must consider the totality of the circumstances in deciding whether the confession is admissible. The admissibility of a confession or statement is a determination for the trial judge and his conclusions on the credibility and weight of the testimony relating to the voluntary nature of the confession or statement are entitled to great weight and will not be overturned unless unsupported by the evidence.
FREEDOM TO LEAVE
Blank argues that a group of four Louisiana and Texas law enforcement officers showed up at Blank’s workplace and transported him by police car to the courthouse for questioning where he was confronted by several other officers and questioned for hours. Blank acknowledged that his immediate needs were met, but he asserts it remained clear that if he wanted a drink, a smoke, or a bathroom break he could only get it with permission of the officers. Blank argues that under the (¡circumstances no reasonable person would have felt at liberty to terminate the interrogation and leave.
Blank readily agreed to go to the Ona-laska Courthouse with task force officers when they came to his workplace on the day of the interrogation and was taken to the courthouse where he was questioned for about twelve hours. After the first three hours answering questions about his spending habits and denying any involvement in the murders, Blank agreed to take a polygraph test that lasted about two and a half hours. After the interview, there was a bathroom break. Then Detective Todd Hymel, one of the members of the task force, entered the room and gave a long, solemn speech frequently referencing Blank’s recently deceased mother. The detective calmly appealed to Blank to do the right thing and take responsibility for his actions. Blank responded and confessed to the murder of Joan Brock and then later to the other murders.
The issue of whether Blank was in custody during the interrogation has already been addressed by the Louisiana Supreme Court in that Court’s review of Blank’s conviction and death sentence for the murder of Lillian Philippe. In that case, Blank argued that the trial court erred when it denied the motion to suppress because Blank was arrested at his place of employment without probable cause. The Louisiana Supreme Court found that the trial court correctly concluded that Blank was not in custody when he voluntarily agreed to accompany the officers to the station. The supreme court stated that the two officers who went to Blank’s automotive shop testified that Blank agreed to accompany them to the police station to answer questions and that he was free to leave before confessing to the crimes. The Court noted that Blank was not given Miranda warnings at his place of employment nor was he handcuffed while he traveled to the station in the front passenger seat of the vehicle.
Additionally, the Louisiana Supreme Court remarked that at the outset of the interrogation, Detective Hymel advised Blank that he was not under arrest and did not want Blank to misunderstand. Blank responded he was not worried about that. After consideration of the circumstances and the applicable law, the supreme court concluded that this exchange demonstrated that Blank voluntarily accompanied the officers to the station and that he failed to show that he had been arrested on less than probable cause.
The supreme court again stated later in its opinion that Blank was told at the outset of the interview that he was not under arrest, and it found that the circumstances of the interview demonstrated that his presence at the sheriffs substation was entirely voluntary.
In that same case, in a related issue, Blank contended that, given the length of the interrogation, he lacked the capacity to give a voluntary statement. The supreme court found that nothing suggested that the duration of the interrogation, without more, rendered it involuntary. Officers administered Miranda warnings nine times during the interrogation, and Blank made several trips to the restroom and drank sodas throughout the interrogation. The supreme court remarked that, although Blank expressed weariness, stated that he was cold, and indicated that he was suffering from back pain intermittently throughout the lengthy interview, he never requested to terminate the interrogation nor did he ever invoke any of his sMiranda rights. In these circumstances, the supreme court concluded that Blank did not demonstrate coercion resulting from the protracted duration of the interrogation.
The transcript of the motion to suppress hearing is contained in the record on appeal. In it Detective Toney testified that Blank did not indicate he wished to leave and discontinue the interview, and Blank was free to leave until he started confessing. The detective maintained that, if Blank had asked to leave, up until the time he confessed to murder, he would have been free to leave. Detective Toney again asserted during cross-examination that Blank was not in custody and was there for an interview. Detective Todd Hymel and Lieutenant Mike Nettles also testified that Blank was free to leave during the interrogation.
At the suppression hearing, Blank offered Dr. Mark Vigen, an expert psychologist, who testified that he interviewed Blank and reviewed the videotapes of the interrogation and the transcript of it. It was the doctor’s belief that Blank thought he was in custody during the interrogation.
The interrogation transcript is also contained in the record. That transcript corroborates the officers’ testimony. At one point in the interrogation, Blank asked Detective Hymel if he was going to be arrested if he refused to take the polygraph test, and Detective Hymel responded that he was not under arrest. At another point, Blank told Agent David Sparks that it looked like he (Blank) was being charged with something he did not know anything about. Agent Sparks then asked Blank if he had been charged with anything, and Blank replied negatively.
Under the circumstances of this case, we find no merit in Blank’s argument that he was unlawfully detained. Blank voluntarily accompanied the officers to the courthouse annex for questioning. When they arrived at the courthouse annex, the ^officers told Blank he was not under arrest, and they advised Blank of his rights. Blank waived his rights and agreed to answer questions without a lawyer present. Before the polygraph test was administered, Blank was again advised he was not under arrest. He made several toips to the restroom and drank sodas throughout the interrogation. Although he made complaints of being tired and cold and having back pain, Blank did not invoke his Miranda rights or request to terminate the interrogation. Additionally, we find these arguments have already been addressed and rejected by the Louisiana Supreme Court.
EMOTIONAL STATE
Blank also contends that the trial judge erred by denying his motion to suppress on the basis that he (Blank) was incapable of waiving his rights and giving statements because of the emotional distress he sustained during the interrogation. He notes that Dr. Vigen described him as an illiterate and easily manipulated individual who was confronted by multiple law enforcement officers and then taken to a strange office for interrogation where, over the course of many hours, he finally broke down. Blank asserts that, under the circumstances of this case, the emotional stress upon him was sufficient to vitiate his consent, contrary to the trial judge’s belief. He directs this Court’s attention to Paragraph 9 in his motion to suppress.
In Paragraph 9 of his motion, Blank argued that the videotaped interrogation showed that he collapsed from fatigue several times during the interrogation, and immediately prior to making any admissions, he collapsed and began crying when officers “had him seven hours into the interrogation and began mentioning his deceased mother to him.” In his order denying the motion, the trial judge found that the ease law was clear that mere emotional distress was not grounds for rendering a confession inadmissible. The trial judge stated that emotional distress, hnsuch as crying or sobbing, had already been held as insufficient grounds “to constitute a confession as constitutionally infirm.” He said that he had viewed the videotapes of the confession, and Blank was not seen to collapse at any point. The trial judge further stated that, while emotions might have “run high” at various separate moments, he did not see what could be characterized as a severe emotional state capable of rendering a confession inadmissible. Consequently, the trial judge concluded that Blank’s allegation lacked merit and that the confession should not be suppressed on that basis. Blank raised similar claims in both prior appeals.
In his earlier appeal to this Court, Blank alleged that the detectives coerced him into confessing by the repeated mention of his deceased mother. This Court stated that, during the interview, the detectives explained to Blank that his deceased mother would want him to take responsibility and admit to the crimes. At that point, Blank broke down and began to cry. Thereafter, Blank admitted to his involvement in the crimes. This Court found that the repeated references to Blank’s deceased mother and the suggestion to tell the truth and take responsibility for his actions did not make the confession inadmissible. This Court noted that the detectives did not threaten or promise Blank anything in reference to his mother in obtaining the confession.
In his appeal to the Louisiana Supreme Court, Blank claimed that mental and physical distress during the interrogation caused him to confess to the offenses involuntarily. He also claimed that the officers coerced his confession by making Inseveral references to God, religion, and his deceased mother. The supreme court stated that its review of the videotapes and the verbatim transcript did not show the officers exercising any type of coercion which would at all indicate that this confession was involuntary. As to the references to Blank’s deceased mother, the supreme court found that appeals to a defendant’s emotions and/or religious beliefs typically do not render an ensuing confession involuntary.
This issue has been presented for review by Blank in two prior appeals, one in this Court and one in the Louisiana Supreme Court. In both opinions, the allegations were found to be without merit. We hold that to be true in the instant case. Accordingly, we find no merit in this argument.
On a review for errors patent on the record, we find that the transcript shows that the trial judge sentenced Blank to life imprisonment without benefit of parole, probation, or suspension of sentence. He neglected to state that the life sentence would be served at hard labor as mandated by La. R.S. 14:30. It is noted that the trial judge did advise Blank during the guilty plea colloquy that he would be sentenced to life imprisonment at hard labor; however, the guilty plea form only shows that Blank would be sentenced to life imprisonment. It is also noted that the minute entry/commitment dated July 9, 2009, also reflects that the trial judge neglected to state that the life sentence would be served at hard labor.
The failure by the trial judge to state that the sentence was to be served at hard labor, where the commitment accurately reflected the sentence to be served, is not an error requiring corrective action by this Court where there is no discretion in ^sentencing. However, we remand the matter and instruct the trial court to amend the minute entry/commitment dated July 9, 2009, to reflect that Blank’s life sentence is to be served at hard labor and to transmit the amended minute entry/commitment to the officer in charge of the institution to which Blank has been sentenced.
We hereby affirm Blank’s conviction and sentence, and we remand the matter with instructions to the trial court to amend the commitment and transmit the amended commitment to the officer in charge of the institution to which Blank has been sentenced, in accordance with the holdings in this opinion.
AFFIRMED; REMANDED WITH INSTRUCTIONS.
The force was also investigating the home invasions and murders of Victor Rossi, Barbara Bourgeois, Lillian Philippe, and the armed robberies and attempted murders of L.M. and J.M.
State v. Blank, 04-204 (La.4/11/07), 955 So.2d 90, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007).
It does not appear that an appeal was taken from the guilty plea relating to the Arcuris; however, this Court has affirmed the plea to the murder of Ms. Bourgeois in State v. Blank, 01-564 (La.App. 5 Cir. 11/27/01), 804 So.2d 132.
338 So.2d 584 (La.1976).
It appears from the minute entries that Blank was tried and convicted on the murder of Joan Brock in 2000 but was granted a new trial on August 14, 2006. The reason for the grant of the new trial is not clear from the record before this Court.
State v. Blank, 04-204 (La.4/11/07), 955 So.2d 90, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007) and State v. Blank, 01-564 (La.App. 5 Cir. 11/27/01), 804 So.2d 132.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Miranda, supra; State v. Comeaux, 93-2729, p. 47 (La.7/1/97), 699 So.2d 16, 29, cert. denied, 522 U.S. 1150, 118 S.Ct. 1169, 140 L.Ed.2d 179 (1998); State v. Watts, 98-1073, p. 5 (La.App. 5 Cir. 5/19/99), 735 So.2d 866, 869.
State v. Watts, 735 So.2d at 869.
State v. Serrato, 424 So.2d 214, 221 (La.1982); State v. Shepherd, 449 So.2d 1120, 1123 (La.App. 5 Cir.1984).
Id.
State v. Blank, 04-204 (La.4/11/07), 955 So.2d 90, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007).
Id. at 102.
State v. Blank, 955 So.2d at 102.
Id. at 102.
Id.
Id.
Id. at 104.
Id.
Id. at 105.
State v. Blank, 955 So.2d at 105-06.
The trial judge cited State v. Robertson, 97-177 (La.3/4/98), 712 So.2d 8, cert. denied, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155 (1998) and State v. Harrison, 451 So.2d 69 (La.App. 4 Cir.1984), writ denied, 477 So.2d 1122 (La.1985) in support of his position.
State v. Blank, 01-564 (La.App. 5 Cir. 11/27/01), 804 So.2d 132 and State v. Blank, 04-204 (La.4/11/07), 955 So.2d 90, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007).
State v. Blank, 804 So.2d 132.
Id. at 138-39.
State v. Blank, 955 So.2d 90.
State v. Blank, 955 So.2d at 107.
The Louisiana Supreme Court cited Johnson v. Trigg, 28 F.3d 639, 644-45 (7th Cir.1994) (confession voluntary even though fourteen-year-old defendant of below average intelligence saw police arrest terminally ill mother before confessing). State v. Blank, 955 So.2d at 108.
This Court conducts a routine review for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request.
State v. Laviolette, 06-92 (La.App. 5 Cir. 9/26/06), 943 So.2d 527, writ denied, 06-2585 (La.5/18/07), 957 So.2d 149.
See, State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).
STATE of Louisiana v. Daniel Joseph BLANK.
No. 2011-K-0386.
Supreme Court of Louisiana.
Sept. 2, 2011.
In re Blank, Daniel Joseph;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. John, 40th Judicial District Court Div. C, No. 1997-639; to the Court of Appeal, Fifth Circuit, No. 10-KA-205.
Denied.
STATE of Louisiana ex rel. Daniel Joseph BLANK v. Burl CAIN, Warden, Louisiana State Penitentiary, Angola, Louisiana.
No. 2015-OK-1367.
Supreme Court of Louisiana.
July 16, 2015.
In re Daniel Joseph Blank; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. D, No. 10,677.
Stay denied; writ denied. The application in this matter is premature in the absence of any adverse rulings on the Motions to Obtain Sealed Records or from the district court regarding a request for continuance of the July 20, 2015 evidentiary hearing.
STATE of Louisiana v. Daniel Joseph BLANK.
No. 2015-KP-1420.
Supreme Court of Louisiana.
July 23, 2015.
In re Daniel Joseph Blank; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. D, No. 10,677.
Stay denied. Writ denied.
STATE of Louisiana ex rel. Daniel Joseph BLANK v. Burl CAIN, Warden, Louisiana State Penitentiary, Angola, Louisiana.
No. 2016-KD-0220.
Supreme Court of Louisiana.
Feb. 17, 2016.
[OPINION BY CRICHTON, J., type=majority]
CRICHTON, J.,
additionally concurs and assigns reasons.
11 Granted. The execution is stayed pending further orders.
because this Court’s review of the district court’s denial of post-conviction relief is pending, I agree with the decision that the execution must be stayed. See generally Barefoot v. Estelle, 463 U.S. 880, 887-88, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (noting that “a death sentence cannot begin to be earned out by the State while substantial legal issues remain outstanding”). I write separately, however, to express my concern that it has taken nearly a decade for state collateral review to reach this Court.,
The defendant confessed to multiple homicides, including the murder of 71-year-old Lillian Philippe, whom he stabbed to death in her home. He was found guilty of first degree murder and sentenced to death in 1999. The conviction and sentence were affirmed on appeal. State v. Blank, 04-0204 (La.4/11/07), 955 So.2d 90, cert. denied, Blank v. Louisiana, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007). Post-conviction proceedings were initiated in 2007 with the filing of a pro se “shell” application, and four lengthy counseled supplemental applications followed. The district court issued rulings in July and September 2015 addressing all claims and denying relief. From those rulings, the defendant applied to this Court for review on February 1, 2016. Execution was set for March 14, 2016.
Both the state and post-conviction counsel bear responsibility for this long ?delay, which has become the unfortunate hallmark of capital post-conviction litigation in Louisiana.. Irrespective of what relief, if any, is forthcoming for the defendant, in my view, it is important to point out that this inordinate delay frustrates our objectives of efficient and effective administration of criminal justice.
STATE of Louisiana v. Daniel Joseph BLANK.
No. 2016-KP-0213.
Supreme Court of Louisiana.
May 13, 2016.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
■ iDenied. In 1999, a' Terrebonne Parish jury found ' relator,' Daniel Joseph Blank, guilty as charged of the first degree murder of 71-year-old Lillian Philippe. At trial, the state presented a detailed recorded statement in which Blank confessed to Ms. Philippe’s .murder' and admitted guilt in five other home-invasion homicides and two attempted homicides. Specifically as to Ms. Philippe, after discussing his entry of her home through a ventilation shaft on the roof, Blank described the confrontation that led to her killing. Blank became a prime suspect in the string of home-invasion murders as a result of his unusual gambling and spending habits and past association with three of the victims. In confessing, he demonstrated knowledge of details in each crime, confessed to stealing large amounts of cash from most victims, and appeared to have had motives in addition-to or other than robbery for some. After finding Blank guilty as charged, jurors, unanimously agreed to impose a sentence of death, in light of the aggravating circumstances that he was engaged in the perpetration or attempted perpetration of an aggravated burglary and Ms. Philippe was age 65 or older. The trial court sentenced him to death by lethal injection in accord with the jury’s determination. This Court affirmed his conviction and sentence, State v. Blank, 04-0204 (La.4/11/07), 955 So.2d 90, reh’g denied (La.6/1/07), and the Supreme Court denied certiorari. Blank v. Louisiana, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007).
In 2007, Blank filed a pro se “shell” application for post-conviction relief. Thereafter, appointed counsel enrolled and filed four lengthy supplemental applications, to which the state responded with procedural objections and an answer. On July 29, 2013, the district court sustained the state’s objections and thereby dismissed several claims on procedural grounds. Nearly two years later, the court conducted an evidentiary hearing on the remaining claims, on July 20-24, 2015, after which it denied relief with written reasons.
As an initial matter, Blank contests the district court’s procedural rulings, urging that, because he did not raise any ineffective assistance of counsel claims on appeal, each of his post-conviction ineffective assistance of counsel claims which the district court dismissed as repetitive were in fact new claims.
In State v. Lee, 14-2374, pp. 8-9 (La.9/18/15), 181 So.3d 631, 638, another post-conviction capital case, we explained that an “attempt to re-litigate a claim that has been previously disposed of, by couching it as a post-conviction ineffective assistance of counsel claim, [should be] generally unavailing.” As we found in Lee, those of Blank’s post-conviction ineffective assistance of counsel claims predicated upon issues which were in fact considered on appeal are not truly new claims under La.C.Cr.P. art. 930.4(A). Moreover, even a claim which the district court has erroneously dismissed on procedural grounds does not necessarily warrant remand. State v. Singer, 09-2167, pp. 1-2 (La.10/1/10), 45 So.3d 171, 171-72 (per curiam); see also La.S.Ct.R. X, § 1(a)(4) (supervisory writ grant based on a lower court’s erroneous interpretation or application of law is generally not warranted unless the Court finds that the error “will cause material injustice or significantly affect the public interest.”).
l3The district court correctly dismissed several of Blank’s ineffective assistance of counsel claims as repetitive because we addressed their underlying substance on appeal. A thorough assessment of Blank’s post-conviction claims reveals further that even those claims which the district court erroneously dismissed as repetitive do not warrant further review, as explained below.
Although Blank is correct that his claim of ineffective assistance of counsel at the penalty phase was not litigated on appeal, he fails to show grounds for remanding it: Trial counsel called several penalty phase witnesses, including Blank’s family members and mental health experts who testified in detail about his organic brain damage and cognitive defects. Under the well-established standard for. ineffective assistance of counsel set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), adopted by this Court in State v. Washington, 491 So.2d 1337, 1339 (La.1986), Blank fañs to show he was prejudiced by the omission of evidence of his troubled background in a case in which jurors heard his detailed confession to the murders of Ms. Philippe, Mr. Rossi, Mrs. Brock, Mr. and Mrs. Acuri, and Mrs. Bourgeois, and the attempted murders of Mr. and Mrs. M. Blank, 04-0204, p. 7 n. 3, 955 So.2d at 101. It is unreasonable to- conclude that the sentence would have been affected by evidence 14that Blank had a difficult childhood in a case in which jurors heard him admit to savagely attacking Ms. Philippe in her home — hitting her in the head with a trophy before stabbing her. Id., 04-0204, p. 7 n. 4, 955 So.2d at 101. This claim does not warrant remand.
Blank also shows 'no basis for the Court’s intervention as to his various juror misconduct allegations. Although our review of the materials presented, which includes post-conviction counsel’s arguments particularizing the claims with supporting affidavits, shows that the district'court erroneously found the claims lacked the requisite particularity, see La.C.Cr.P. art. 926(B)(3), Blank shows no basis for remanding them. Under the jury shield law, see La.C.E. art. 606(B), courts áre prohibited from inquiring into the jury’s deliberative process, except in cases in which the petitioner shows that extraneous prejudicial information influenced the deliberations. The rule originates in the common law and serves the substantial interests of finality and confidentiality in, criminal cases. See, e.g., Tanner v. United States, 483 U.S. 107, 117, 107 S.Ct. 2739, 2745, 97 L.Ed.2d 90 (1987) (“By the beginning of' this century, if not earlier, the near-universal and firmly established common-law rule in the United States flatly prohibited the admission of juror testimony to impeach a jury verdict.”).. Because none of the alleged misconduct pertained to or derived from a prohibited external source, Blank’s claims must fail and no remand for the taking of juror testimony in the district court is warranted..
As for Blank’s claim that he was denied a fair and impartial tribunal, the district court was correct that he should have raised the claim earlier. The grounds on which the. claim rests — that because Judge Peytavin was previously an assistant district attorney who prosecuted his brother for unrelated offenses, he was incapable of serving impartially- in this case — were known to Blank before trial. I sLa.C.Cr.P. art. 674 .requires the party desiring recusal to file a written motion assigning the grounds therefore immediately after the supporting facts are discovered; Blank has instead waited several years. Further, to the extent that he alleges counsel erred by failing to file a motion to recuse Judge Peytavin, his claim also fails. La.C.Cr.P. • art. 671(A)(1) lists the grounds for recusal, providing, in part, that a judge shall be recused when he-is biased) prejudiced, or personally interested in’the cause to such an extent that he would be*unable to conduct a fair and impartial trial. Blank does not show that Judge Peytavin was in any way biased or prejudiced,-much less to such an extent that he was incapable of serving as an impartial arbiter of these proceedings. See State v. Edwards, 420 So.2d 663, 673 (La.1982) (it is well-settled that a trial judge is presumed impartial); State v. Collins, 288 Sd.2d 602, 604 (La.1974) (same). Accordingly, Blank cannot show that counsel unreasonably decided not to file'a motion to recuse. See generally State v. Kenner, 336 So.2d 824, 831 (La.1976) (counsel does not err in not undertaking futile steps). The district court reached the correct result when it dismissed this claim.
As for Blank’s final procedural complaint, that the' district court erroneously dismissed as repetitive his claim of actual innocence of the murder of Lillian Philippe, ’ Blank shows no' basis for this Court’s 'intervention. His póst-conviction attempt to overturn his conviction and sentence by presenting evidence which in his view casts doubt on the reliability of his confession falls short of the high standard contemplated in State v. Conway, 01-2808 (La.4/12/02), 816 So.2d 290, and further articulated’ in State v. Pierre, 13-0873 (La. 10/16/13), 125 So.3d 403, according to which a post-conviction petitioner asserting his actual innocence (not based on DNA) must present “new material, noncumulative and conclusive evidence which meets an extraordinarily high standard, and which undermin[e]s Rthe prosecution’s entire case.” Conway, 01-2808, p. 1, 816 So.2d at 290-91’. In evaluating the actual innocence claim in Pierre, we clarified that a free-standing claim for post-conviction relief must rest on new-facts so compelling that no reasonable juror could have voted to convict with knowledge-thereof. Pierre, 13-0873 p. 4, 125 So.3d at 409. Blank’s alleged “new’facts”—that -undisclosed law enforcement documents indicate it was impossible for him to have accessed the Philippe home in the manner detailed in his confession—fail this standard. That investigators possessed doubt as to how -he physically accessed the-home, but not as to whether• he actually entered it, is not conclusive evidence of his innocence. This claim -does not warrant further consideration. See Singer, 09-2167, supra (post-conviction petitioner- sought new. trial based on co-defendant’s recantation; district court found the claim time-barred but the court of appeal reversed and remanded for consideration in light of new facts; on review, this Court granted writs and reinstated the summary denial because the supporting evidence was not new, material, noncumulative, and conclusive evidence of actual innocence).
As for those claims which the district court rejected after considering the merits, Blank also shows no basis for relief. Under the standard for ineffective assistance of counsel set out in Strickland, supra, a reviewing court must reverse, a conviction if the petitioner establishes (1) that counsel’s performance fell below an objective standard, of reasonableness under prevailing professional norms; and (2) that counsel’s inadequate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect.
First, Blank urges counsel’s performance fell below professional norms because ’ counsel failed to vigorously litigate the admission of his ’ confession on the ground that it did not reliably establish by clear and convincing evidence that he was the. person ■ who committed the other crimes. When other crimes evidence is admitted, the state must show by clear and convincing evidence that the defendant is the person who committed the other acts. La.C.E. art. 404; State v. Davis, 449 So.2d 466, 468 (La.1984).
Blank asserts that trial counsel has provided no justification for the failure to present expert witnesses to cast doubt on his confession’s reliability. At the eviden-tiary hearing, counsel explained his efforts to gather academic and medical records to shed light on relator’s impaired cognitive function and demonstrate that his confession was involuntary, but conceded that an expert opinion about Blank’s mental frailties would have also supported the motion to suppress. However, even assuming counsel could have reasonably done more to bolster the motion to suppress, such as present an expert opinion, Blank cannot show that those efforts would have resulted in his confession being excluded as unreliable in a ease in which his confession provided critical information about Ms. Philippe’s murder that had not been released to the public, such as the fact that a trophy was used to beat her, that the intruder rifled through her purse and left it in her bathroom, that the safe was in the bedroom closet, and that his confession contained details about the other murders that only the perpetrator would know: Blank, 04-0204, p. 23, 955 So.2d at 112. The district court correctly rejected this claim.
Blank also shows no entitlement to relief based on claims that counsel rendered'ineffective assistance' at the guilt phase of trial. He urges that counsel erred by failing to undercut the probative value of his confession by exposing discrepancies between it and the other evidence; ' emphasizing other suspects; and presenting an expert opinion to explain why it should be discredited. He compares his case with Soffar v. Dretke, 368 F.3d 441, 473-74 (5th Cir.2004), amended on reh’g in. part, 391 F.3d 703 (5th Cir.2004), a Texas capital post-conviction case in which the Fifth Circuit, found that counsel rendered ineffective assistance by failing sto interview and present the single ■ known eyewitness whose account would have directly refuted the defendant’s confession, the only evidence'linking him to the crime. Id. The Fifth Circuit found that the error had “a clear negative impact on the outcome.” Soffar, 368 F.3d at 443-74, 478.
Despite any parallels that might be drawn between this case and Soffar, unlike in Soffar, Blank does not show or even allege that counsel overlooked a “silver bullet” — a single witness or item of evidence capable of disproving his confession. Rather, he urges that the combined effect of counsel’s failures would have undercut his confession. Judicial scrutiny of counsel’s performance is highly deferential and reviewing courts. indulge. a strong presumption that it fell within, the wide„range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. At the evidentiary hearing, counsel explained that his trial strategy- was ,to draw as little attention as possible to the unadjudicated homicides and to focus on creating reasonable doubt in the Philippe case. Counsel was aware of the law enforcement .doubts and physical constraints surrounding some aspects of Blank’s confession, specifically as to how he gained entry into Ms. Philippe’s home, and exploited these vulnerabilities on cross-examination, By the same token, trial counsel was also aware that Blank had reportedly made additional statements on the drive back to Louisiana, further implicating himself, along with another person; and that a wristwatch identified as having belonged to victim Joan Brock was discovered in a burn pile outside a residence in which Blank spent time. Against the backdrop created by his sweeping admission of guilt, coupled with this knowledge of other incriminating evidence, counsel reasonably saw his strategic options as very limited. As counsel explained at the evidentiary hearing, a perception that his defense strategy was to nit-pick the state’s case would have risked an incurable loss of credibility with the jury. Nevertheless, contrary to 19B lank’s post-conviction claims, counsel did emphasize some of the discrepancies, ie., as to the theory of his entry into Ms. Philippe’s home and the M. couple’s inability to identify him, while deliberately and justifiably avoiding others. Counsel’s tactics were not unreasonable. See Wiggins v. Smith, 539 U.S. 510, 527, 123 S.Ct. 2527, 2538, 156 L.Ed.2d 471 (2003) (“In assessing the reasonableness of an attorney’s investigation ... a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.”); Sanders v. State, 738 S.W.2d 856, 858 (Mo.1987) (“The selection of witnesses and the introduction of evidence are questions of trial strategy and the mere choice of trial strategy is not a foundation for finding ineffective assistance of counsel.”); State v. Felde, 422 So.2d 370, 393 (La.1982) (the fact that a particular' strategy fails does not establish ineffective assistance). The district court correctly rejected this claim.
Next, Blank claims counsel erred by failing to present evidence of other suspects. At trial, the state presented testimony indicating that several suspects, including victims’ relatives, had been investigated and ruled out. Blank, 04-0204, p. 2, 955 So.2d at 98. According to trial counsel, the state disclosed suspect lists for each homicide, which he used to conduct independent investigations. Having found nothing helpful through those investigations, counsel decided not to emphasize whatever suspicions may have once existed as to other individuals because doing so would have been purely speculative. Blank presents nothing to show that counsel ignored any viable means of showing third party liability. La.C.Cr.P. art. 930.2; see generally Jones v. Jones, 988 F.Supp. 1000, 1002-03 (E.D.La.1997) (before reviewing court will reverse for failure to investigate, inmate must show that attorney “fail[ed] to investigate a plausible line of defense or interview available witnesses.”). The district court correctly rejected this claim.
inNext, Blank claims counsel erred by failing to present experts to explain that his confession was of dubious worth in light of his various mental frailties. Although counsel’s stated reason for not introducing such an expert opinion was flawed, given that such testimony would have been admissible to enable jurors to determine what weight to attribute to the confession, see La.C.Cr.P. art. 703(G), Blank does not show that the error undermined the verdict. Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). An expert opinion similar to those presented at the evidentia-ry hearing would have been insufficient to convince reasonable fact-finders that Blank was so mentally feeble as to have falsely confessed not only to brutally attacking and killing Ms. Philippe but also to several others. Contrary to Blank’s urging, unlike in Soffar, in which the state’s case consisted only of the defendant’s uncorroborated confession and, significantly, in which the defendant had a history of giving false confessions, see 368 F.3d at 478-79, detailed portions of Blank’s confession which had not yet been made public were corroborated by the physical evidence. In addition, the state presented evidence that Blank knew some of his victims and had gambled large amounts of cash at area casinos shortly after the robberies, in far in excess of his income. Blank, 04-0204, pp. 6-7, 23, 955 So.2d at 101, 112. Because the omitted opinion testimony was not reasonably likely to have affected the jury’s determination, no prejudice resulted.
Next, Blank claims the state presented false testimony from crime scene technician George Schiro, pertaining to how he accessed Ms. Philippe’s home. As Blank sees it, Schiro’s confirmation that his report mentioned the blade of green _Jjjgrass observed in the attic was false testimony because it' was not Schiro’s report that documented the grass. However, Blank waived this claim when he failed to lodge an objection to the allegedly false testimony. La.C.Cr,P. art. 841. In any event, because he asserts (without addressing whether the claim was preserved) that trial counsel did not receive a copy of Schiro’s report upon which to base- an objection, we have considered the merits out of an abundance of caution.
Pursuant to Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972), a petitioner must receive a new trial if he shows that the prosecutor suborned perjury and “‘the false testimony could ... in any reasonable likelihood have affected the judgment of the jury_’” Id. (quoting Napue v. Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173, 1178, 3 L.Ed.2d 1217 (1959)). Even granting that Schiro’s testimony can be construed as false, to the extent he confirmed that it was his report that documented the blade of grass, although it was actually Officer Brenn’s report, before false testimony will require reversal, the petitioner must show that the falsehood might have affected the verdict. Meeting this standard proves difficult for Blank. ■ Whether the grass was referenced in Schiro’s report or Brenn’s report is immaterial in a case in which Schiro testified that he personally observed the grass in the attic. Compare State v. Whitley, 92-3312 (La.4/29/94), 637 So.2d 459 (Court denies relief to inmate who shows that important state witness lied about state’s agreement to dismiss pending charges in return for testimony because “given other evidence against him, there is no reasonable likelihood that the alleged false testimony could have affected the ^outcome of the trial.”). Blank makes no showing that this alleged falsehood was' even remotely capable of affecting the verdict. The district court correctly rejected this claim.
Next, Blank claims the state suppressed exculpatory or impeachment evidence in violation of its duty to disclose favorable evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Blank disputes the district court’s finding that most of the allegedly suppressed evidence whs in fact disclosed. At the conclusion of his argument, however, he summarizes by urging that, regardless of whether the evidence was disclosed, he was prejudiced by its omission at trial.
Pursuant to Brady and its progeny, a prosecutor does hot breach his duty to disclose favorable evidence' “unless the omission is of sufficient significance to 'Result in the denial of the defendant’s right to a fair trial.” United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976); State v. Willie, 410 So.2d 1019, 1030 (La.1982).
In dismissing Blank’s Brady claims, the district court found the following:
At the evidentiary hearing, exhibit after exhibit was offered and accepted into evidence demonstrating that trial counsel did have the FBI reports, they were given an extensive list of names of individuals for whom law enforcement sought fingerprints, and letters were provided indicating the involvement of a psychic.... The State demonstrated that the majority of the items which the defense claimed to have not received were, in fact, provided to defense counsel. Considering the confession of the defendant, as well as the corroborating [evidence], .., this court cannot say that the fairness of Mr. Blank’s trial was inhibited.
District Court Ruling on Applications for Post-Conviction Relief, p. 6 (emphasis added). Blank does not show that the district court erred.
Trial counsel acknowledged that, in response to the motion for a bill of particulars, the state disclosed evidence of the law enforcement doubts about the 1¶ (¡perpetrator’s manner of entry into Ms, Philippe’s home, the information that was in the allegedly suppressed FBI reports; law enforcement suspicions about other persons of interest; and law enforcement doubts as to' whether all the homicides were related, It was also adduced at the evidentiary hearing that the state' disclosed all the information that was relied on to prepare whichever FBI reports were not- disclosed and that, in any event, the FBI analyses therein were not favorable becausé the suspect profiles they developed implicated Blank. Thus, he does not show that the state suppressed anything favorable among the FBI reports.
As to- the allegedly suppressed state police reports, which Blank claims he could have used to cross-examine Sgt. Breaux about the pliers used to cut victims’ power lines, he also. shows no violation. Blank complains that the reports would have undermined the officer’s testimony that the pliers admitted at trial were used at “multiple crime scenes” because the reports indicated the pliers did not .conclusively match cuts found at two scenes. Blank fails to show that he was deprived of a fair trial without this particular opportunity for cross-examination, however, given that the verdict would not have been appreciably affected even if jurors had learned that the pliers they were shown in court could be linked to several but. not all of the crimes. Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995); United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 3381, 87 L.Ed.2d 481 (1985). No error is shown.
Finally, Blank shows no grounds for relief based on his argument that the cumulative effect of the claimed errors rendered the proceedings fundamentally unfair or in light of the five remaining claims he merely incorporated by reference. Although we have previously reviewed cumulative error arguments, we have never endorsed them. See, e.g., State v. Strickland, 94-0025, pp. 51-52 (La.11/1/96), 683 So.2d 218, 239; State v. Taylor, 93-2201, (La.2/28/96), 669 So.2d 364 (unpub’d appx.); State v. Tart, 93-0772, p. 55 (La.2/9/96), 672 So.2d 116, 164; State v. Copeland, 530 So.2d 526, 544-45 (La.1988) (citing State v. Graham, 422 So.2d 123, 137 (La.1982)). Given Blank’s failure to show prejudice as a result of any of the claimed errors, he cannot show that their combined, effect entitles him to relief. See, e.g., Mullen v. Blackburn, 808 F.2d 1143, 1147 (5th Cir.1987) (rejecting cumulative error claim, finding that “twenty times zero equals zero”). And because Blank provides no supporting arguments for his remaining claims, he has waived them. See La.S.Ct.R. X, § 4(3)(d) (requiring “argument of each assignment of error on the facts and the law....”); La.S.Ct.R. VII, § 6 (assignments of error made but not briefed considered abandoned); State v. Bay, 529 So.2d 845, 851 (La.1988).
Blank has now fully litigated his application for state post-conviction relief. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Blank’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless Blank can show that one of the narrow exceptions authorizing the filing of a successive' application applies, he has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.
JOHNSON, C.J., dissents and assigns reasons.
■ CRICHTON, J,, additionally-concurs and assigns reasons. '
In 1997, an Ascension Parish grand jury indicted relator for first degree murder. In 1998, the trial court granted Blank’s motion for change of venue and moved the case to Terrebonne Parish.
Because this Court considered the underlying issues on appeal, the district court did not err in dismissing the following claims as repetitive: that the trial court failed to balance the prejudicial effect of the evidence of the other homicides against its probative value; and that counsel failed to file a motion to quash on the ground that discrimination infected grand jury foreperson selection; that counsel failed to object to an erroneous jury instruction about the purpose of other crimes evidence; that counsel failed to object to the use of a short-form indictment; and that counsel elicited testimony about his criminal record, La.C.Cr.P. art. 930.4(A); State v. Blank, 04-0204 (La.4/11/07), 955 So.2d 90.
Dr. Milton Rhea informed jurors that, although Blank exhibited a full-scale IQ of 85 and average comprehension ability, he had great difficulty with abstract concepts and predicting consequences. Dr. Rhea explained further that Blank’s test performances were consistent with those of a special education population and supported a diagnosis of developmental disorder which would make him suitable for rehabilitative treatment, Dr. Rhea also testified that Blank’s personality profile (as measured by the widely-used Minnesota Multiphasic Personality Inventory or "MMPI”) indicated pervasive mental ill.ness. Dr. Ronald Goebel also testified that Blank suffered with abnormal brain function and was functionally'illiterate.
Counsel testified at the evidentiary hearing that he believed it was necessary that Blank had entered a plea of not guilty by reason of insanity to be permitted to introduce evidence pertaining to his cognitive abilities at the time of the confession.
The evidentiary significance of the grass being green, as opposed to dried and brown, is that it was indicative of a recent entry from outside.
Notably, counsel conceded at the evidentia-ry hearing that he was informed in writing before trial that investigators had observed a blade of green grass in the attic. Counsel also testified that he read Dowell’s .and/or Schiro’s report and was aware of the doubt it cast on the entrance theory. [OPINION BY JOHNSON, C.J., type=dissent] JOHNSON, C.J., dissents. hThe district court erred when it dismissed as repetitive Daniel Blank’s claim that trial counsel rendered ineffective assistance by failing to investigate and present mitigating evidence at the penalty phase of this capital trial. Contrary to the district court’s determination, this Court did not previously consider any of the omitted mitigating evidence that post-conviction counsel now presents and this claim is deserving of thorough consideration in the district court. Therefore, I would grant the writ application and remand to the district court for further proceedings to address the claim of ineffective assistance of counsel that was próeedtírally defaulted in error. A defendant at the penalty phase of a capital trial is entitled to a reasonably competent attorney acting as a' diligent and conscientious advocate for his life. State v. Fuller, 454 So.2d 119, 124 (La. 1984); State v. Berry, 430 So.2d 1005, 1007 (La.1983); State v. Myles, 389 So.2d 12, 28 (La.1980) (on reh’g). In other words, counsel’s role at capital sentencing resembles his role at the guilt phase in that he must “ensure that the adversarial testing process works to produce a just result. ...” Burger v. Kemp, 483 U.S. 776, 788-89, 107 S.Ct.- 3114, 3122-26, 97 L.Ed.2d 638 (1987). Because the district court declined to consider the merits of this claim, however, Daniel Blank was denied the opportunity to show that counsel failed to -undertake “a reasonable investigation [which] -would have uncovered miti- - gating evidence,” and that failing to put on the available mitigating evidence at the. penalty phase “was not a tactical decision but reflects a failure by counsel to adequately advocate for his client’s cause,” which resulted in “actual prejudice.”. State v. Hamilton, 92-2639, p. 6 (La.7/1/97), 699 So.2d 29, 32 (citing State v. Brooks, 94-2438, pp. 7-8 (La.10/15/95), 661 So.2d 1333, 1337-38; State v. Sanders, 93-0001, p. 25 (La.11/30/94), 648 So.2d 1272, 1291). As post-conviction counsel urges, the ABA Guidelines provide an overview of counsel’s duty to investigate at the penalty phase, instructing that counsel explore, inter alia, the defendant’s family and social history for evidence of physical, sexual, or emotional abuse. ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (1989). Counsel’s dereliction of these duties may warrant relief even for a petitioner who has committed particularly heinous crimes. In Williams v. Taylor, 529 U.S. 362, 368, 120 S.Ct. 1495, 1500, 146 L.Ed.2d 389 (2000), the defendant committed violent assaults on two elderly victims, leaving one in a persistent vegetative state. Counsel failed to present evidence of the defendant’s nightmarish childhood; that he was “borderline mentally retarded;” that he helped law enforcement crack a prison drug ring and returned a guard’s missing wallet; and that prison officials would describe him as non-violent and capable of thriving behind bars. Taylor, 529 U.S. at 396-99, 120 S.Ct. at 1514-16. The defendant in Rompilla v. Beard, 545 U.S. 374, 377, 125 S.Ct. 2456, 2460, 162 L.Ed.2d 360 (2005) stabbed his victim repeatedly before setting fire to his body. Counsel failed to present evidence that the defendant was raised by abusive alcoholics and often confined to a small dog I «pen; and suffered brain damage causing extreme mental disturbance and impaired cognitive function. Rompilla, 545 U.S. at 392, 125 S.Ct. at 2468-69. In each case, the U.S. Supreme Court vacated the death sentence and remanded for re-sentencing, finding counsel’s inadequate investigation resulted in prejudice at sentencing. Supreme Court jurisprudence emphasizes the sui generis nature of capital punishment and the resulting need for heightened scrutiny of proceedings that result in a death sentence. This Court, too, has recognized that Ineffective assistance of counsel in the penalty phase of capital cases is a recurring problem. In many cases ... defense counsel, after vigorously contesting the guilt phase, has turned the case over to the jury for penalty determination with little additional evidence or argument, perhaps because the emotional and physical strain [of the loss at] the guilt phase lessens his ability to maintain the same performance level in the immediately following penalty phase. State v. Williams, 480 So.2d 721, 728 n. 14 (La.1985). The record here reveals that trial counsel overlooked readily available and compelling mitigating evidence which would have informed jurors about the abusive environment inside Daniel Blank’s childhood home. In particular, trial counsel failed to discover readily available mitigating evidence which could have been obtained by interviewing his relatives, to demonstrate the incestuous and abusive behavior inflicted by his grandfather, parents, and some siblings; and that, as a result of his family’s extreme poverty, he often went hungry and was generally isolated from the community. This omitted evidence indicating that Daniel Blank and his seven siblings were regularly subjected to sexual abuse and forced to subsist in extreme poverty throws into stark relief’ the peaceful portrait of Daniel Blank’s childhood and family life presented by. the defense penalty phase witnesses before the jurors began their sentencing deliberations. Because the district court erroneously dismissed this claim as repetitive, trial counsel was not examined at the post-conviction evidentiary hearing about any reasons he may have had for failing to unearth and present the mitigating evidence that post-conviction counsel has amassed. Even cursory review of the mitigating circumstances enumerated in La.C.Cr. P. art. 905.5 should have prompted trial counsel to investigate Daniel Blank’s childhood and background for any relevant mitigating circumstances, as contemplated by art. 905.5(h). Much of the mitigating evidence that post-conviction counsel now offers appears to be precisely the sort that jurors would have-been required to consider in deciding whether death was the appropriate penalty. See Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 2947, 106 L.Ed.2d 256 (1989) (“[EJvidenee about defendant’s background and character is Irrelevant because of the belief.... that defendants who commit criminal acts that are attributable to ... emotional and mental problems ... may be'less culpable than defendants who have no such excuse.”) (internal quotations and citation omitted), abrogated on other grounds, Atkins v. Virginia, 536 U.S. 304, 307, 122 S.Ct. 2242, 2244, 153 L.Ed.2d 335 (2002). Ever mindful that Daniel Blank has confessed to brutally murdering Ms. Philippe and similarly attacking seven others, evidence of the extraordinary abuse and deprivation he is alleged to have endured as a child may nevertheless have swayed a juror in favor of imposing a life sentence. But because the district court erroneously found this claim repetitive, Daniel Blank has not had the opportunity to show that he was prejudiced in the absence of the omitted mitigating evidence, as were the defendants in Taylor and, Rompilla. Therefore, the claim should be remanded for further proceedings rather than' dismissed prematurely and Daniel Blank’s right to state collateral review terminated before it has run its full and fair course.
See Gilmore v. Taylor, 508 U.S, 333, 342, 113 S.Ct. 2112, 2117, 124 L.Ed.2d 306 (1993) C‘[W]e have held that the Eighth Amendment requires [in a capital case] a greater degree of accuracy and factfinding than would be true in a non-capital case.”) (citations omitted); see also Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) (death penalty is “qualitatively different” and may require departure from usual rules); Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) ("[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long.... Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.”) (footnote omitted).
Post-conviction counsel submitted multiple affidavits which included details, such as: • Blank grew up in a family with an extensive history of incest and sexual abuse; • Blank’s brother raped their seven-year-old sister Audrey, attempted to rape their 15-year-old sister Sally, and raped their cousin Dinah; • Blank and his mother slept together often; • Blank’s father and older brother would routinely touch family members inappropriately; • Blank’s mother locked all the food away to prevent the children's access and the Blank children were always hungry and would forage for food;. • The Blank children were sometimes locked out of the house and forced to sleep in the shed; • The parents disciplined the Blank children by hitting them with various objects, including a 2x4; • Blank’s father would frequently grab him by the neck and slam his head into a wáll; • The Blank family lived in poverty and had, to grow most of their .food and made their clothes from potato sacks and other materials they found; • The neighborhood children teased and ridiculed Blank and his1 siblings and referred to them as "rats” because they were unkempt with poor hygiene and no running water in the house.
See also Eddings v. Oklahoma, 455 U.S, 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (refusal to consider family history and childhood abuse of 16-year-old facing the death penalty as mitigating factors violates Eight Amendment). Mitigation evidence bearing on the “life or death” sentencing decision is of necessity crucial, Cf. State v. Welland, 505 So.2d 702 (La. 1987) (conviction and sentence reversed .for erroneous exclusion of "crucial mitigating evidence"). [OPINION BY CRICHTON, J., type=concurrence] CRICHTON, J., additionally concurring. Daniel Blank confessed he murdered 71-year-old Lillian Philippe in 1997. He bludgeoned and stabbed her to death in her home in Gonzalez. He also confessed he killed Joan Brock, 58, of LaPlace; Barbara Bourgeois, 58, of Paulina; Victor Rossi, 41, of St, Amant; and Sara Arcuri 76, and his. wife, Louella, 69, of LaPlace. He also, beat and shot, L.M. and .his wife, J.M., both 66, of Gonzales, and both of whom survived. For the most part, he attributed his murderous rampage through the River Parishes to his gambling addiction. Although Blank’s confession is much maligned by post-conviction counsel, it contains details that were not publicly released and would only have been known by the murderer. - During the penalty phase in his trial for the first degree murder of Ms. Philippe, the defense depicted Blank as a man with developmental disabilities, delusions, and abnormal.brain functioning, who nonetheless was-a good father and compassionate person. According to defendant’s relatives, who pleaded for mercy on his behalf, they were a close-knit and happy family. Post-conviction counsel, however, presents an entirely different version of Daniel Blank.' This new version 1 gof Daniel Blank is alleged to have been subjected to near-starvation as a result of poverty as well as incestuous abuse, which post-conviction counsel claims was endemic in his family. Post-conviction counsel claims trial counsel was ineffective for hot presenting this version of Daniel Blank, which counsel argues would surely have found one sympathetic juror in the penalty phase. This approach epitomizes the unfortunate trend of turning capital post-conviction proceedings into a second penalty phase: when the reasonable strategy chosen by counsel-in the original penalty phase does not succeed. Providing a second penalty phase, however, is not the purpose of collateral review, is completely contrary to the law,- and represents an extraordinary drain on the limited resources available for indigent defense with negative repercussions that ripple through the entire criminal justice system. Daniel. Blank cannot show he suffered “actual.prejudice”, see State v. Hamilton, 92-2639, p. 6 (La.7/1/97), 699 So.2d 29, 32, by the strategic choice of counsel at the original penalty phase to try to depict him in a sympathetic light as a damaged but decent man whose family pleaded for mercy on his behalf,. He confessed to multiple brutal murders and gave robbery as a motive. Jurors were aware of his cognitive deficiencies. “Even if a Petitioner shows that counsel’s performance was deficient; [ ] he must also show prejudice,” that is he must show “a reasonable probability that but for counsel’s unprofessional errors, the result ... would have been different.” Williams v. Taylor, 529 U.S. 362, 394, 120 S.Ct. 1495, 1513-14, 146 L.Ed.2d 389 (2000) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984)). Here, I concur fully in the decision to deny the application but write separately to emphasize that, in light' of Blank’s confession and the nature and number of offenses he committed, I believe there is ‘no reasonable probability that the outcome of the penalty phase would have been different regardless of which of these two versions of Daniel ¡¡Blank was presented to the jurors. Therefore, there is no reason to remand to further address' this claim, which'would servé only to continue the drain of resources that are badly needed for indigent defense.